A Future Online Civil Court: (3) Six questions to answer

In Chapter 6 of his report Sir Michael Briggs poses six main questions:

1.Whether the Online Court (OC) should be a separate court, with separate rules, or a part of the county court, regulated by the Civil Procedure Rules (CPR) (suitably extended);

2. What claim values and which types of claim should fall within, or be excluded, from the OC;

3. Whether the use of the OC should be compulsory in relation to the types of claims within its jurisdiction: and in any event, what help should be given to those who are challenged in their use of computers;

4. Whether there should be any, and if so, what, arrangements for costs shifting;

5. What provision should be made for appeals from the OC;

6. How should open justice be guaranteed in an online environment.

  1. A separate court with separate rules?

Sir Michael has listed a number of advantages and a number of disadvantages of this idea, before reaching a strong provisional view that the creation of a separate court is to be preferred: a court truly designed for the use of litigants without lawyers. He welcomes comments.[1]

He says that the advantages of creating a separate court would be:

It would best achieve the ultimate objective of the OC: the creation of a court for litigants without lawyers. It is intended to be a less adversarial court, where investigation by the court will be an important and distinctive part.

The OC will need software and structures for help to those who are challenged in the use of computers. This software will need maintenance teams, both technical and procedural. The electronic structure will need intense maintenance, development and care, especially in the early years while it beds down and gets established. It would be vital for there to be a structured, dedicated resource focussed on the particular services provided by the OC and on the needs of its users. This will need both digital expertise and experience in dispute resolution. It mustn’t be simply a bolt-on to IT maintenance within the county court.

The OC is likely to need special Case Officers, trained in the process of investigation and conciliation: a unique combination of skills. If county court Case Officers were used on a part-time basis, they would be less focussed and probably under-funded. The Rules would need to be constructed from scratch and self-standing: it would be best if there were a committee and drafting team quite separate from the Civil Procedure Rules Committee (CPRC). Experience elsewhere has shown that the people who are best equipped to draft rules for Litigants in Person (LIPs) are found among employed and voluntary members of LIP-facing advice and assistance agencies.  In practice there will need to be close co-operation between lawyers, software experts and drafters, supervised by a committee with a predominantly lay membership. The rules would be simpler than the CPR.

A separate court with its own rules would be better insulated from the encrustation of legal authorities that is besetting the CPR.

In contrast, he says that the advantages of placing the OC within the county court system would be:

The creation of a third separate court within the civil court structure would add to its complexity;

The same district judges would be responsible for the final determination of claims. This might detract from the efficiency and flexibility of judicial deployment. There may also be issues related to the judges’ terms and conditions of service.

Primary legislation would be needed, and the creation of a separate court would fracture the uniformity of rules in the civil courts that was achieved by the Woolf Reforms. The OC would be deprived of the benefit of the accumulated wisdom of members of the CPRC.

If a new court were created, with separate staff, there could be loss of economy of scale.

The OC might provide an inferior offering. There would be a risk of losing the brand name of the county court.

The appellate structure would have to be regulated by the CPR. There could be confusion if the OC had its own rules.

My preliminary view

With one caveat, I agree with Sir Michael that it would be better for a new Online Court to be freestanding.   It will be important, however, that cases can be transferred between the mainstream county court and the OC, and vice versa, without undue formality or the payment of any court fee. Otherwise there would be a danger of returning to the rigidity of the divides between the different courts in the days before the Judicature Acts, or the farce I encountered in my Report on the Civil Courts eight years ago when a special application had to be made for a transfer to the High Court if a freezing injunction was being sought from an experienced circuit judge who happened to be sitting in the county court.

It will also be important for some form of pre-action protocol to be in place, to prevent defendants from being at risk of being put to expense in defending a claim of which they have had no adequate previous notice.

 

2. What claim values and what claims should fall within, or be excluded, from the OC?

Sir Michael reported that he had encountered wide views on what should be the boundaries (by subject-matter) of the OC. He considers that value alone is not a reliable determinant for the appropriate allocation of cases. Complexity and public importance must also be factored in. Suggestions for a limitation by value ranged from £2,000 to over £100,000.

What was firmly agreed, however, was that there must be a permeable membrane through which cases could be transferred out, or transferred into the OC.

He thought that limitation by value would be acceptable, provided that it was not mechanistically applied.[2] He felt that it was inevitable that there should be some sort of value limit, for cases not inherently unsuitable for the OC. Earlier in his Report he had mentioned the concept of Value at Risk (VaR), and a Line below which it is usually disproportionately costly to litigate with the assistance of lawyers. He thought that on this basis the search for an appropriate value limit would probably lead to the adoption of a figure well over £25,000, and probably above £50,000. At all events, fully represented litigation of a claim where the VaR is no more than £25,000 is almost certainly disproportionately expensive.

He said that possibly the adoption of the small claims track limit of £10,000[3] would be a prudent starting point, as a stepping stone to a limit which in due course would be raised to a higher level. He warned, however, that this would not address the needs of the potentially large class of civil litigants who have claims in excess of £10,000 who are currently deterred from litigating at all.

His own view is that £25,000 would be a better steady-state objective, while £10,000 could be adopted as a temporary initial limit. When the court had proved itself, the value limit might go over £25,000. However, subject to opt-outs, a value limit set at £25,000 would accommodate a substantial part of the business of the county court in terms of numbers of cases.

He then turned to consider the question whether eligibility for the OC should be defined on an inclusive basis, with certain classes of work specifically excluded (“opt outs”), or, at any rate in the early stages, whether the OC should be confined to specific classes of case only (“opt ins”).

He said that those in favour of opt outs say that those who advocate the exclusion of any specific class of case should justify its exclusion, by showing that it would not lead to disproportionate costs or serve as an inhibition to access for justice.

Those in favour of opt-ins, on the other hand, say that the OC is a new and untried concept, and that it should be introduced cautiously, class by class, starting only with liquidated money claims.

Whatever the answer, Sir Michael said there was at present a wide measure of provisional agreement as to the classes of work that should be excluded (at least initially):

Possession of dwelling houses;[4]

Injunctions and other non-monetary relief such as specific performance and declarations);

Class claims (including bankruptcy and winding up);

Claims by or against minor children and other protected parties.

Sir Michael then embarks on a discussion of personal injury and housing disrepair cases. On the former, his provisional view is that subject to two caveats, the exclusionists have the stronger case at present,[5] although he does not see why small claims track personal injury cases should not be included, and says that claimants who wish to use the OC for their personal injury claims should be allowed to do so.

His mind is open in relation to housing disrepair claims for the reasons he sets out in para. 6.49.

My preliminary view

Whatever the ultimate objective should be, I am sure Sir Michael is right when he advocates starting with a value limit of £10,000, following an adequate period of testing in small pilot schemes. We are moving into unknown territory, so far as this jurisdiction is concerned, and it would be a disaster if things went badly wrong in relation to a claim above the current small track limit simply because the software had not been rigorously tested (and improved in a series of iterations) in actual practice.[6]  I have mediated building disputes where the VaR was under £25,000 in which the issues raised not only in the claim by the builder but also in the set-off and counterclaim by the building owner would present a formidable challenge for first generation software.

When the county court rule makers introduced the ill-starred “automatic strike-out” regime nearly 25 years ago they seem to have thought that all county court claims were simple, with only one claimant and one defendant and no pre-trial wrangles. Things are not always as simple as that (as the designers of the Universal Credit software seem to be finding).

Provision must be made for claims for possession of a dwelling-house to be heard in suitable local premises, hired for the purpose (if necessary), because the loss of one’s home is such a potentially traumatic event that it would be wholly wrong for the case to be handled by a court an hour’s distance away by public transport. The idea of a single mother, possibly with a disabled child, having to travel a long way by public transport to a distant court in order to resist eviction is not an outcome one should readily contemplate. In our earlier court modernisation plans it was regarded as essential that this type of case should be heard locally.

[ADDENDUM: Since I first expressed these views, it has been suggested to me that ministers have no current intention of allowing HMCTS to hire premises closer to a person’s home for purposes like this if there is a courthouse one hour’s journey away.  As I have said, it was an essential part of the earlier plans that a district judge should be able to administer justice locally for cases like possession actions, and I very much hope that a similar facility will be included in the current plans before they are finalised.  As a fall-back solution, the ability for a defendant to a possession action to be able to address the court from some convenient local venue by videolink (of the type I watched in action at the new Melbourne County Court 13 years ago) would be preferable to having to cope with the long journeys (and no doubt, the equally long wait at court) which is what may be being envisaged at present.]

If it is judged appropriate to increase the small claims limit for personal injuries cases to £5,000 (about which I express no opinion) then strenuous judge-led efforts must be made to create software which is able to reflect the monetary value of different types of claim: a task as sensitive as this should not be left to the executive in consultation with insurance companies. If this is done, it would seem appropriate to admit those claims to the OC.

I am not qualified to express a view about housing disrepair claims.

 

3. Should the OC be compulsory? How should an Assisted Digital Service be provided?

(1) Compulsion

Sir Michael observes that these two questions are linked together. It is inevitable that to meet the long-term objective (a court suitable for litigants without lawyers) this will only be achievable if the OC is compulsory for every case within its competence, with broad discretionary powers to move appropriate cases out.

It is not only potential claimants who will be deterred from litigating without lawyers. Many low/medium value claims are brought by large institutions, which don’t need Stage 1 or even Stage 2 services[7]. Litigants with the resources to use lawyers might see a perceived procedural advantage in issuing in the county court if the choice were open to them.

It is not intended to prohibit the use of lawyers, but it is likely that the OC would have a costs regime which would include shifting only of court fees and limited disbursements[8]. But the use of lawyers in the OC would not put parties at a severe disadvantage, as at present, because of the investigatory and other assistance provided to LIPs by its culture, procedure and dedicated IT.

An additional reason for not making the OC compulsory at the outset might be to allow it to prove itself as an attractive forum for litigants without lawyers before it is made mandatory for that purpose. A proving period would run hand in hand with a proving period that is required to validate the Assisted Digital Service.

(2) An Assisted Digital Service

Sir Michael reports that there has been a lively debate as to what an Assisted Digital Service (ADS) should include. He said that nobody doubts the need for substantial assistance online in the form of digital help for completing online forms. The OC will not do much good for those who cannot access it.

It is common ground that some form of telephone helpline will be necessary, manned by sufficient staff to ensure that waiting times on the phone don’t make the completion of online forms practically impossible.

It is also necessary to make a reliable pre-assessment of the size of the class of users who are likely to find the use of computers difficult or impossible. OC users will need particular help on how the court works. Consultation has shown that the proportion of potential OC users who are likely to find the use or ownership of computers challenging is likely to be considerably higher than the same general proportion of citizens of England and Wales. At the Civil Justice Council’s LIP Forum in December 2015 it was thought that well over 50% of current LIP court users fell into that class.

Concerns about the adequacy and the long-term funding of the ADS were at the forefront of consultation responses. Her Majesty’s Courts & Tribunals Service recognise that both these concerns need to be addressed and tested before the OC can be made compulsory.

Pro bono agencies have staff and volunteers who are well qualified to help, but this service cannot be left to pro bono agencies.

A significant class of civil court users are as challenged by the use of speech or paper as they would be by the use of computers, and many do not speak English as a first language.

This is not to say that ADS can’t be appropriately contracted out to private agencies, but it must be paid for. The expenditure would be justified because the court is likely to provide scope for very substantial savings in due course.

There will be problems for a significant class for whom the fact that English is not their first language, and modern IT may help here. There is also an issue as to how to integrate the Welsh language into the OC.

My preliminary view

I am sceptical about the idea that an Assisted Digital Service alone will ever be sufficient.   All the work I did in the field of Public Legal Education has convinced me of the vital importance of face-to face advice in appropriate cases.   I remember vividly a black Harvard Professor telling a plenary session at the Baltimore Court Technology Conference in Baltimore in 2001 that increased resort to digital technology is likely to make the dispossessed (which in an American context met the blacks and the Hispanics) become even more dispossessed.

In my opinion, any idea that the OC might ever be made compulsory must be put on hold while there is widespread consultation with advice agencies and others in the front line who know what is involved in helping the illiterate, the innumerate, the disabled, those for whom English is not their first language, and other vulnerable people to understand their legal entitlements and show them how to enforce them. It is these people who have been hardest hit by the brutal cuts to legal help.  Of course, every effort should be made to enhance and extend the coverage of excellent digital advice services such as Law for Life’s Advice Now, but these cannot be the complete solution.

 

4. Costs Shifting

Sir Michael says that it is inevitable that except in cases of misconduct, costs shifting[9] will not extend to the recovery of legal costs. Costs shifting should be limited to the recovery of court fees and some other expenses. There may be a question about recovery of the cost of obtaining private assistance in the use of computers.

There are well-established precedents for such a regime: the small claims track of the county court and the Employment Tribunals.

My preliminary view

I agree with Sir Michael’s conclusions, especially that a suitable cost-capped provision for seeking help in understanding how the OC works should be recoverable, at least until its use has been firmly established.

 

5. Appeals

Sir Michael says that plainly an appeals regime will be needed. Options would be a circuit judge in the county court; High Court; or the Court of Appeal.

The current route of appeal against decisions by district judges is to a circuit judge in the county court, and it seems to Sir Michael that, subject to consultation, this should be the preferred candidate.

My preliminary view

I agree.

 

6.Open justice

This was dealt with generally in Chapter 4 of the Report. Sir Michael considers that the need for open justice provides a technical challenge but not an insuperable obstacle to digitisation.

It may be that the very different procedures of the OC may make some of these technical challenges more difficult, especially in Stage 2.

However, the current Small Claims Mediation Service is not open to public view. If the conciliation process offered at stage 2 includes some form of early neutral evaluation some element of transparency will need to be considered.

My preliminary view

I see no difficulty about the procedures at Stage 2 not being readily transparent. This would very much reflect the present position, at any rate in the small claims track.

 

In general

Sir Michael concludes this chapter by saying that plainly the introduction of a new concept, backed by new IT systems, will require extensive testing.

It may well be prudent to introduce it for specific classes of work and with a reduced value limit until it is fully proved and shown to be effective in practice.

My preliminary view

I agree. There will be widespread opposition to this innovation, especially among lawyers who will perceive a significant loss of business, and caution should be the order of the day while the service is being piloted , tested, and initially introduced to the public.

[1] Comments should be sent to ccr@ejudiciary.net

[2] He referred in this context to current practice within the Chancery Division, where Chancery masters may transfer cases to the county court even if their value is over the £350,000 county court limit; and the county court can transfer lower value to cases to the High Court if their complexity or public importance warrant the transfer.

[3] The limit for personal injury cases and housing disrepair cases is currently lower.

[4] Subject to possible exceptions, such as “no fault” claims under s 21 of the Housing Act 1988 and claims where there is a mandatory ground for possession and no dispute that it applies.

[5] Because claimants need lawyers to level the playing field when faced by substantial insurance companies, and because the online portal that has now been established produces a high level of settlement.

[6] I remember that when the CREST system was originally introduced into the Crown Courts 25 years ago, it had only been tested in a small court complex at Guildford, and things went so badly wrong when it was extended to Birmingham that the whole programme had to be put on ice for six months while the systems designers decided what to do in order to deal with the more complex practices that had grown up in a major urban court centre.

[7] I have explained these in my previous blog on the Online Court.

[8] See below.

[9] By which the court may order the loser to pay some or all of the winner’s costs.

One thought on “A Future Online Civil Court: (3) Six questions to answer

  1. Pingback: A Future Online Civil Court: (1) The Background – Henry Brooke

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