A Future Online Civil Court: (1) The Background

 

On 12th January 2016 the Judicial Office published Sir Michael Briggs’s Interim Report in the Civil Courts Structure Review. Although he is only concerned with the court structure in which any Online Court will be positioned, the nature and size of the jurisdiction that should be devolved to it and a few ancillary matters, it is the first glimpse we have so far been afforded of the current state of official thinking, following the two trail-blazing reports which were published last year: 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.

Sir Michael has asked for comments on his report by the end of February[1], and because his description of the current proposals is hidden away in the sixth chapter of quite a bulky document, I thought it would be helpful to pick out its salient features in a series of blogs, in the hope that these may be disseminated quite widely and their implications quite widely understood long before the current short consultation period comes to an end.

Readers of my blogs will remember that I was the Judge in charge of Modernisation for four years (2000-2004) when our gallant efforts to provide adequate digital support to judges and front-line court staff were cruelly – and unwisely – rejected by the Treasury in the course of the 2002 Government Spending Review.[2]

That ill-fated attempt at court modernisation left most of our civil and family courts with a new IT infrastructure that was still sub-standard when compared with what had been provided in the Crown Court, but with software created for office-based work (as the name “Microsoft Office” implies) as opposed to the modern software, in very common use in contemporary overseas jurisdictions, that judges and court staff needed in order to handle the avalanche of paper that surrounded them.[3] The office software which we provided for judges and court staff has eventually became so obsolete that its manufacturers stopped maintaining it, as the Lord Chief Justice recently observed.

The consequence of these years of neglect is that within the current £730 million modernisation programme Her Majesty’s Courts and Tribunals Service (HMCTS) are trying to achieve two major reforms at the same time. The first is to provide the courts with the well-tested software they need in order to receive and handle court papers electronically.[4] The second, inspired by Professor Richard Susskind (with whom I have discussed IT matters again and again over nearly 20 years), is to introduce for the first time the concept of a court system which will eventually process all the pre-trial processes of a civil claim with the help of sophisticated software which every litigant will eventually be expected to use without the help of lawyers.

This software is still at an early design stage, and one needs to remember that if detailed requirements are not given to the system designers before they start their work it will be much more expensive to correct errors or to add embellishments later on. One must also remember that, apart from the habitués of the Rolls Building, who have for many years enjoyed access to IT systems infinitely superior to those vouchsafed to the courts, many barristers and, more importantly, many solicitors’ firms have not yet been trained in the culture of transacting court business electronically or altered their own internal office practices to meet this new requirement. Human resistance to change, and widespread scepticism as to whether HMCTS is capable of digitising court practice without another expensive IT disaster, are likely to be the order of the day.

In the second blog in this series I will summarise Sir Michael’s description of the basic concept of the online court on which the systems designers are now working. In the third blog I will be summarising the questions on which Sir Michael is seeking people’s help, and adding my own preliminary comments.

[1] 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 .”

[2] As I have observed elsewhere, the Treasury regards civil and family justice as a commodity to be bought and sold at cost rather than as an essential public service, every bit as important as a health service or a public education service to the citizens of a modern democracy founded on the rule of law.

[3] Paper had been bombarding the courts in ever-increasing quantities ever since the 1999 Woolf reforms introduced the concept of judicial case-management into our arrangements for civil (and later, family) justice.

[4] This is not the subject of the current series of blogs.

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