May 27, 2016

Smaller claims to go online?

Access to justice

In 2006, Lord Woolf produced one of the most renowned reports in legal history. In that report, among many warnings and proposals, he stated that our IT use and materials needed to drastically improve if we were to keep up with litigation levels.

Lord Justice Jackson’s review of the above report supported this prediction, in which he noted that our IT system had still not been adequately developed.

Ten years on and the number of litigants in person has continued to rise. Where legal costs are not recoverable, or are simply disproportionate to the sums being disputed, it makes sense for parties to proceed into litigation without spending more than the value of their claim on professional representation. However, in order for this to work in practice the system is clearly in need of a shake up to make it more accessible to those without solicitors on board and improve access to justice.

What next?

The proposals, set out in Lord Justice Briggs’ interim report on the structure of civil courts, include proposals for an ‘online court’. Inspiration, it seems, has been taken from eBay’s model, which resolves approximately 60 million disputes each year.

The proposed civil litigation online route would be appropriate for claims under £25,000 and is intended to be accessible to people without professional legal representation and would follow a three stage structure be as follows:

Stage 1. "Dispute Avoidance": after an online questionnaire-style series of questions to identify the parties’ respective positions (i.e. replacing the traditional paper claim form and defence) this ‘self-help’ stage would encourage the parties to negotiate a resolution between themselves with the use of interactive guidance, factsheets and information regarding their dispute.

Stage 2. "Conciliation": if no agreement can be reached, ‘case officers’, who would not be legally trained, would enter into discussions to assist the parties further and hopefully reach a resolution. This is intended to build upon the current small claims mediation model, presumably with the same non-authoritative role of the facilitators.

Stage 3. "Dispute Resolution": this would be the highest and final stage of the dispute and would see a Judge determine the outcome of cases. A traditional in-person trial hearing may be necessary in rare cases but it is envisaged that telephone and video conferencing or documentation reviews would be used in the majority of cases.

Many, including the IT adviser to the Lord Chief Justice, Professor Susskind, believe that tens of thousands of disputes could be resolved each year through this new system. Others, however, have recalled past experiences and harbour serious doubts as to the proposed system’s practicability.

Lessons to be learned

Past records of the court system’s attempts to update their IT systems are consistently riddled with examples of lack of funding, lack of communication and insufficient updates. The Law Society professed guarded optimism regarding the new system, stating that "lessons should be learned about existing systems". They also highlighted the "long history of underinvestment in court IT" which does make some question what will be different this time.

There are also concerns from within the legal profession about the role of the ‘case officer’ and how far it is appropriate for judicial decision making powers to be delegated to non-qualified lawyers. The proposals currently allow for any substantive decision that has been made by a case officer to be appealed up to a judge – the question is whether this will ultimately result in creating more work for the judges and more delays for the system.

Concluding thoughts

If lessons are indeed learned and adequate funding is invested, then an ‘online court’ could be the solution to the courts’ overcrowding/understaffing problems. Diverting large volumes of small-value disputes to an online platform would not only reduce the costs and time of the parties involved, but would simultaneously allow for greater availability (and hopefully shorter turnaround' times!) in our courts for larger claims to be heard more quickly and efficiently.

There is just one question… will it be funded/developed/used enough to make a positive difference?

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