The proposed online court: what will it mean for litigators?

Civil courts structure review: final report contains various proposals relating to judges, appeals, mediation, enforcement and the number of trial centres, as well as that for an online court.¹

About the author 
David Bowden is a solicitor-advocate.

 

The report proposes that the online court would have its own rules; would be online only; and would be used for all disputes with a monetary value of £25,000 or less. The proposals will effectively abolish the small claims and fast tracks as all those cases would have to be brought in the online court. There is one thing that is clear: these proposals are all about the Ministry of Justice (MoJ) reducing costs.

What did the interim report recommend?

Briggs LJ recommended a three-stage system for the new, online-only court:

• Stage 1: automated triage process by which litigants identify their case (or defence) online in terms sufficiently well ordered to be suitable to be understood by their opponents or the court, and upload the key documents and evidence relied on.
•  Stage 2: conciliation and case management by a court case officer either conducted by e-mail or by telephone.
• Stage 3: determination by a district judge (or deputy district judge) on these documents either via:
  - a telephone or video hearing; or
  - a face-to-face trial.

What feedback was sought on the initial proposals?

During the consultation phase, Briggs LJ sought specific feedback in his interim report on the following aspects:

• whether the online court should be a separate court with its own rules, or a branch of the county court governed by the Civil Procedure Rules (CPR);
• the types of claim within its remit;
• citizens who are not IT literate;
• costs shifting; and
• routes of appeal.

What feedback was provided on the initial proposals?

In his final report, Briggs LJ summarises his recommendations on these aspects as follows:

• The MoJ has decided that the online court will have its own separate rules, and is preparing the necessary primary legislation for parliament. There will be a new, separate rules committee for not just the online court, but also for all courts and tribunals in civil or family matters, which will be oriented towards litigants in person. There will remain a problem about how to regulate cases that pass from the online court to the county court because of complexity.
• The online court will have an initial limitation for money claims which are unaccompanied by any other non-monetary remedy. A series of defined exclusions are proposed. • • Briggs LJ recommends leaving the identification and design of the best form of assistance for those who are not computer literate to a new Litigant in Person Engagement Group.
• Basic provision for costs shifting should be that already in use on the small claims track, including costs sanctions for misconduct. It should also provide modest fixed costs recovery for early advice on the merits from a lawyer and for advocacy at trial where ‘really necessary’ (page 57).
•  An appeal should lie, with permission, to a circuit judge where the decision in the online court is made by a district judge. This appeal can be on a matter of law or on factual findings or both. A second appeal should lie to the court of appeal subject to the usual more stringent permission test. There will be new rules for appeals from the online court and CPR Part 52 will not apply to these appeals

What are the perceived advantages to these proposals?

At the moment, we do not know whether the new online court will be any cheaper than the county court because no one has laid out the fees or costs. However, there should be the advantage of speed in getting to a final decision. The system is being designed for use on desktop or laptop PCs. There seems to be an aspiration that it will also work on smartphones and tablets too.

For debt and other bulk-issued claims where these have a value under £25,000, although they will have to be issued in the online court, there is meant to be a short cut in stage 1 where it is ascertained that there is no dispute that the debt is in fact owed. For litigators familiar with pre-action protocols which require much information and documentation to be sent with an initial letter of claim, the online court should not present much difficulty . Briggs LJ says that he does ‘not regard the erection of a pre-action protocol procedure as at all suitable to the online court’ (page 52). Briggs LJ envisages instead a ‘simple exchange of correspondence’ pre-action (page 52). If the system is designed properly, then that will constrict and restrict the ability to state either a claim or a defence.

Presently, there is a mediation service for small claims, with a mediator attempting to settle claims by telephone mediation; however, this is limited to a one-hour session only. The proposed conciliation service at stage 2 seems to resemble this, but whether equivalent results can be achieved by an exchange of e-mails rather than a telephone call remains to be seen.

Does the Courts Service have the relevant IT capability?

In the Rolls Building, there is a relatively new system called CE File in which all court documents can be uploaded for all commercial court, technology and construction court and Chancery business.

However, CE File is designed to be used by professional advisers. This is presently voluntary, but is meant to become compulsory from April 2017. In 2015, there were only 870 new cases in the commercial court, while Money Claims Online issued 437,000 new cases in the first quarter of 2016 alone

. Briggs LJ seeks to brush most of the problems of scale aside, thinking that all IT issues can be sorted if there is a ‘soft launch’ . Yet, even Briggs LJ is forced to admit that the IT development work for stage 1 is ‘the most novel, challenging and time consuming’ , and he would expect it ‘to be particularly vulnerable both to poor procurement and to under-funding’ (pages 49 and 50 respectively).

If all debt claims under £25,000 will be required to start in the new online court, then the IT architecture will have to be built to replicate this; yet, this is not addressed by Briggs LJ in his report.

Will there be any exemptions?

Briggs LJ recommends only six very limited exemptions (see page 119):

• Claims for possession of homes should be excluded ‘at least initially’ .
•  Personal injury or clinical negligence claims ‘should’ also be excluded if they would otherwise fall within the fast track or multi-track .
• Professional negligence claims ‘will’ initially qualify for exclusion ‘until a means of having them determined by specialist judges ... can be developed’ . • • Intellectual property claims ‘should’ be excluded because the specialist Intellectual Property Enterprise Court already exists.
• Claims for damages only for breach by ‘landlords’ of repairing obligations ‘should not’ be required to be brought in the new court, but tenants ‘should be able to do so if they wish’ .
•  Claims seeking an order that the landlords do repairs and/or counterclaims in response to possession claims ‘should’ be excluded.

There is little provided in the way of justification about why these exemptions should exist, or even why the list is so short. The language used by Briggs LJ is troubling too as all the proposed exemptions would seem to be only transitional ones.

Which claims will this apply to?

Unless the claim falls within one of the above narrow exemptions, where its monetary value is £25,000 or less, such cases will have to be started in the online court when it is operational. However, if a claimant is also seeking a non-money remedy, such as an injunction or a declaration, then initially such claims can be brought in the high court or county court. What issues arise from having a different set of rules? Lawyers advising on lower value cases will need to understand another set of rules. Briggs LJ is proposing too that cases started in the online court will transfer to the regular county court through what he describes as a ‘permeable membrane’ (page 123). At that point, these cases will then be subjected to the CPR. When the Woolf reforms were introduced in 1998, for the first time they introduced a single set of rules which applied to all civil claims. Briggs LJ’s proposal seems to be a step backwards. What is the Canadian experience? The Civil Resolution Tribunal (CRT) has just started operating in the province of British Colombia, in Canada.2 2 Underpinning the CRT is a piece of primary legislation, the Civil Resolution Tribunal Act (CRTA) 2012, which is made up of 112 sections, and a 26-page set of procedural rules. The CRTA excludes lawyers unless an adjudicator decides otherwise. No other Canadian province has yet adopted this system

CRT accepted its first claim on 13 July 2016. However, the tribunal accepts just one class of claim (relating to condominium rights or charges). The CRT offers compulsory non-binding paper adjudication. The CRT charges the equivalent of £90 to issue a claim; the equivalent of £15 to lodge a defence; and the equivalent of £60 for a tribunal decision. Judges are paid the equivalent of £315 a day. Will the proposed court be lawyerless? Briggs LJ does not envisage that the online court will be lawyerless. Where a lawyer is used, stage 1 can be shortened. Briggs LJ wants parties to have ‘early bespoke advice’ on their claims, but wants the costs of this to be ‘unbundled’ from the cost of a traditional retainer (page 41 and page 43 respectively). Briggs LJ says that the cost of such advice could be ‘an element of fixed recoverable cost’ (page 44). Where cross-examination is needed at a hearing, again Briggs LJ tepidly recommends ‘some fixed recoverable cost’ for trial advocacy (page 44). Will the proposals be piloted first? Surprisingly, given the scale of the changes proposed, Briggs LJ is not recommending piloting the proposals. He notes, at page 55 of his final report, that in British Columbia the promoters of its online court are starting with a soft launch focused on one case type only (see above), and that this will be run as a pilot scheme from which lessons can be learned about the final design.

Briggs LJ’s only proposals on piloting relate to the concepts which underlie stages 2 and 3. He says:

This does not mean that the concepts which underlie stages 2 and 3 cannot in the meantime be piloted within existing courts … But it would be wrong in my view to delay the development of stage 1 of the civil online court until stage 2 and 3 have been put in place (page 50).

What about costs and fees?

Briggs LJ refuses to elaborate on this. He merely says that ‘its processes would not be free’ , and then adds: ‘court fees are not part of my terms of reference’ (page 64). At the moment, we do not know the answer to this vital question and whether the new court will represent a good deal or a poor one.

What about disabled people and older people lacking IT skills?

Briggs LJ recognises that there is a class of older people who are not IT literate or others without broadband access. He rejects demands for a parallel paper version of the court; instead, Briggs LJ refers to ‘assisted digital’ , saying that it will be left to advice agencies to assist these litigants (page 118).

What will the new court be called?

The working name is ‘online court’ . The MoJ will have to adopt this term unless it can come up with a better name. Some suggestions have already been considered and discounted (for example, citizens court, open court, accessible court or court 21); however, Briggs LJ prefers the name ‘online solutions court’ .

What is the timetable for the next steps?

Rather ambitiously, Briggs LJ is working towards the delivery of the project by April 2020.