I don’t know how many people have more than a hazy idea of the scale of the changes that are soon to dominate our civil justice landscape. These are still very early days, but in Chapter 6 of his Civil Courts Structure Review Interim Report Sir Michael Briggs[1] has lifted the curtain a bit and invites criticism and comments by the end of next month.[2]

We have already had the Civil Justice Council’s Report on Online Dispute Resolution for Low Value Civil Claims and the Report of a JUSTICE Working Party on Delivering Justice in an Age of Austerity.

Now, nearly a year later, Sir Michael tells us that a design team within Her Majesty’s Courts and Tribunals Service HMCTS) is actively developing the concept of an Online Court (“OC”), in consultation with judges in what is called the Civil Judicial Engagement Group.   He says that this concept furnishes the best available prospect of providing access to justice for people and small business of ordinary financial resources.  Funding is now in place for its design, testing and implementation. No details have yet been furnished by the design team, so that all we have at present is Sir Michael’s summary of what is being planned.

To some extent the Ministry of Justice and HMCTS have already set the scene with the publication of a consultation paper that presages the scale of the civil court closures that are very likely to be implemented.[3] Now that the advent of digitisation means that the “papers” needed for civil court business can be sent on-line to one or two Business Centres, rather than being filed physically in paper form in the back offices of courts up and down the country, the way is open for the creation of a much smaller network of civil court centres. In theory these will be located in such places that as a general rule nobody will have to travel for more than an hour by public transport to get to his/her nearest court.[4] The income from court and tribunal closures will be the source of much of the public money to be invested in the £730 million HMCTS Reform Programme which the Chancellor of the Exchequer announced in the Autumn Spending Review last November[5].

The ambition that drives the civil court programme is that all the civil courts that survive this carnage will be digitised, and that the OC will be the first court ever to be designed in this country, from start to finish, for use by litigants without lawyers. It is intended to be used for the resolution of relatively simple and modest value disputes. Simplicity (in the first instance) is a requirement

(a) because first generation software is unlikely to be up to the task of accommodating complex issues and

(b) because our traditional adversarial system of justice is pre-eminently well suited to the resolution of complex issues of fact and law.

In an earlier part of his report Sir Michael explains how disputes of modest value continue to attract a disproportionate expenditure of costs if litigation is conducted with the help of lawyers. He believes that the use of the OC will probably be confined, at least in the early stages, to the resolution of money claims[6].

It appears that the HMCTS design team is now working on a variant of the 3-stage structure that was being developed in the two earlier reports.

Stage 1 would be a mainly automated process, in which litigants would be assisted in identifying their case (or defence) online in terms sufficiently well-ordered to be suitable to be understood by opponents and resolved by the court. Litigants will also be required to upload the documents and other evidence which the court will need for the purpose of resolving the case.

Stage 2 will be a mix of conciliation and case-management, mainly conducted by a legally qualified Case Officer. This will be conducted partly online and partly by telephone: probably not face to face.

Stage 3 consists of the determination of the case by a judge,[7] either on the documents alone, or by telephone, videolink or at face to face hearings in a courthouse. There will be no default assumption that there must be a traditional trial. This proposal marks a significant departure from the Civil Justice Council’s February 2015 Report which envisaged that no case would be determined in a courthouse in the traditional manner.

Sir Michael also discusses a new Stage 4 – the enforcement stage – in a separate chapter[8] of his report.

Stage 1 is the most novel departure from current practice. Today all the papers in contested civil litigation are filed at local county court offices, either direct by the parties or their representatives, or posted from HMCTS units like the Money Claims Online Centre in Northampton, which receives an initial money claim and the initial defence online and then sends them in paper form to the local courthouse as soon as the claim is being contested.

Through the new triage software that is being developed for the OC a lay litigant will be guided through an analysis of his/her grievance, with the ultimate aim of producing a document capable of being understood by his/her opponents and by the court.

Sir Michael gives as an example a dispute between a householder (A) and a builder (B).  A will access the HMCTS Court Portal and select the OC as the appropriate court. She will provide her name and contact details, and will then identify the object of her grievance by reference to a drop-down tick-box menu – for example, Bank, Holiday Company, Next-door Neighbour, Builder etc.  After ticking ”Builder” she will then be asked questions about the essential nature of the dispute (for example, the quality of the work, the amount that is being charged, or delays in completion).

These will then lead on to further pages, including the identification of B and the provision of his contact details.  If there was an agreement in writing, A will be required to attach it electronically, or to scan or photograph a paper copy: the use of a smartphone is suggested for the photograph.  This means, Sir Michael says, that the central documents that the court will require will be lodged electronically at the outset.

A will then be taken to pages that will question her about the details of the dispute, and at the end of all this the software system will generate a document on screen that will approximate to traditional Particulars of Claim.  Finally, she will be invited to approve or amend the document, and then certify its truth.

The OC system will then deliver her documents and accompanying evidence to B, either electronically, or by a letter or text message that will invite B to go online to state his response.  He will then be taken through an investigatory process in broadly the same way as A has been.  There will be by-passes for litigants who elect to use their own lawyers, and also for bulk issuers, who will possess suitably trained staff.

An important part of the OC concept is that there will be online help at every stage throughout the process of completing the court documents, together with simple commoditised online advice about the bare essentials of the relevant law.  “If it can be made to work”, Sir Michael says optimistically, everything will be available on the electronic file in an ordered state from the outset, and not in the confused muddle that is so often the fate of a district judge (DJ) when he/she is confronted by court forms completed by a litigant in person under today’s regime.[9]

Stage 2 will make conciliation a culturally normal part of the civil court process, rather than a purely optional and extraneous process[10]. The parties will be invited to avail themselves of conciliation services to be provided by the Case Officer.[11] This would build on the successful experience of Small Claims Mediations, which are conducted by senior court staff who have been given some training as mediators but are not themselves lawyers, who do not see any court papers at all as they ask the parties about the dispute in a series of telephone conferences.

Finally, Stage 3 is structured so that a traditional trial in a courthouse will be a mechanism of last resort, and not a default assumption[12]. Because the OC is designed for the use of litigants unaccompanied by lawyers, the judges may well need more training, more frequently, in the law they encounter in cases lodged in the OC, because they will not be able to expect much help from the litigants. Although this is a feature of the current small claims track regime, it is envisaged that the OC will embrace claims of a much greater value as well.[13]

 

[1][1] Sir Michael is a Lord Justice of Appeal with vast experience of Chancery practice. He was previously the author of a report on the modernisation of Chancery practice. He is now the Deputy Head of Civil Justice.

[2] Sir Michael has “invited comments in writing on the interim report by the end of February 2016; ahead of further consultation on, and consideration of, issues ahead of preparing the final Review report by the end of July 2016.  Comments may be sent to: ccsr@ejudiciary.net .”

[3] In London, for instance, it is proposed that the Bow County Court, the Hammersmith (formerly West London) County Court, the Lambeth County Court and the Woolwich County Court are all to be closed.

[4] A dramatic change from the original concept of the County Court in 1846 as the poor man’s court, to which a journey of not more than ten miles would be the norm.

[5] The Review refers to a “more than £700 million investment in the courts and tribunals system to create a swifter, more proportionate justice system, which will generate savings of approximately £200 million a year from 2019-20”.

[6] This will be discussed in my next blog on this topic.

[7] A district judge or a deputy district judge.

[8] Chapter 10.

[9] “The common experience of DJs hearing small claims track cases at present is that the key facts and evidence remain buried in the minds of the litigants and in their ill-assorted bundles of documents even when they arrive at court for a trial.”

[10] As encapsulated in the “alternative” part of the acronym ADR (“Alternative Dispute Resolution”).

[11] This will not be compulsory.

[12] Sir Michael suggests that a face to face hearing could in some cases be confined to the determination of particular issues.

[13] This is discussed in my next blog.