In the biggest shake-up of the civil courts system since the Woolf Reforms, Darren Sylvester assesses the recommendation for an Online Court.
On 27 July 2016, Lord Justice Briggs produced his Final Report on the Civil Courts Structure Review. This Review was commissioned in July 2015 by the Lord Chief Justice and Master of the Rolls. Her Majesty’s Courts and Tribunals Service (“HMCTS”) was planning reform of the courts and this review has coincided with its work. Lord Justice Briggs submitted his Interim Report to the Lord Chief Justice and Master of the Rolls on 24 December 2015, which was published in January 2016. A key finding within both the Interim Report and Final Report was the recommendation for an Online Court in a new civil court structure. The remainder of this article focuses on this specific concept.
The proposed Online Court
One of the strongest arguments put forward for an Online Court is that the civil justice system, in its current form, fails to provide reasonable access to justice for individuals or small businesses with moderate value claims as legal fees are often in excess of the sums in dispute. It is proposed that a new Online Court would be designed to be used without the need for lawyer involvement and would consist of three stages: (1) an automated online triage stage designed to help users to articulate their claim and to upload key documents and evidence; (2) a conciliation/case management stage by Case Officers; and (3) a determination stage by a district judge (either on the papers, at trial, by telephone hearing or video conference, as considered appropriate).
Although an Online Court is to be designed without the need for reliance on lawyers, Lord Justice Briggs does not seek to exclude lawyers entirely as within the formation of the Online Court model, there should be the opportunity for qualified lawyers to offer, and litigants to seek, early bespoke advice on the merits of their cases before pursuing or defending litigation in court. Ideally, such advice should come before stage 1. If a claim does proceed via the Online Court that is successful, then the costs of obtaining such advice at the outset would be a fixed recoverable cost. At the time of writing this article, the aspect of fixed recoverable costs for a successful claim where legal advice was taken from a qualified lawyer or, indeed, the fees to use the Online Court, have not been agreed.
Stage 1, Stage 2, Stage 3 and Appeals
Stage 1 of the Online Court is predicated on the basis of a computerised ‘triage’ system that will enable court users to produce a document setting out their claim in a manner that can be understood by defendants and the court. Lord Justice Briggs articulates that the design and ongoing maintenance of stage 1 of the Online Court is not solely, or even mainly, an IT challenge. He refers to it being primarily an exercise in knowledge engineering – i.e. having a detailed understanding of the law relating to each case within the court’s jurisdiction. Questions will be posed to users of the Online Court that will extract facts and evidence about their case, which is then put into digital form. Lord Justice Briggs argues that having this information at stage 1 (the absence of which is often an impediment to successful pre-issue Alternative Dispute Resolution) will assist the court in deploying resources to manage cases effectively and will ultimately maximise its efficiency.
In respect of stage 2, Lord Justice Briggs accepts that while some case conciliation by Case Officers will very much be along the lines of the existing Small Claims Mediation Service, higher level value claims may not be suited to this approach and may require, for example, judicial early neutral evaluation or private mediation. The primary function of a Case Officer at this stage is finding the most appropriate means for conciliation for each case, and the most appropriate means of determination of those cases which cannot be conciliated. Lord Justice Briggs recommends that Case Officers should all have legal qualifications and experience, should be trained and supervised by judges and that any party using the Online Court who has received a decision from a Case Officer can have the decision reconsidered afresh by a judge.
Determination of all disputes that reach stage 3 will be heard by either deputy district judges or district judges by one or a combination of the methods listed above. Appeals from the district judge in the Online Court will go to a Circuit Judge (or Recorder) in the County Court. It is proposed than an appeal from the County Court will go to the Court of Appeal.
Value of claims for the Online Court and excluded claims
What the Final Report recommends is that the ceiling for the value of claims suitable for the Online Court is set at £25,000.00, and if necessary to be approached in stages by a soft launch of the Online Court by either using an initial ceiling value of claims at £10,000 and under or by launching the service of the Court by reference to specific types of cases. Cases excluded from Online Court are possession claims, personal injury claims, clinical negligence claims, professional negligence claims and intellectual property claims.
While the Online Court will be a separate court and have its own rules, Lord Justice Briggs does not feel that the erection of a pre-action protocol procedure is at all suitable for the Online Court. Instead the new rules for the Online Court should be devised in a simple form as possible, under a new committee charged with making rules not only for the Online Court but also for litigant in person orientated courts and tribunals.
There have been several criticisms of the Online Court concept, which include (the list is non-exhaustive):
- that that the Online Court will provide second-tier, second class justice to those wrongly viewed as having less important claims;
- that the stage 1 automated and interactive process will be beyond the capabilities of the current IT systems within HMCTS and will never be able to replace bespoke advice on the merits from a lawyer;
- the Online Court is not suited to those who do not use a computer or laptop or those in rural areas where broadband access is not as good as in urban areas.
- that the determination of disputes other than at a face to face hearing will deprive the loser of a basic feature of English justice, namely a day in court; and
- that online justice threatens a loss of open justice and transparency.
It is contended that many of the criticisms are valid, especially as there is no precedent upon which to assess whether an Online Court would sufficiently change the civil litigation landscape. Lord Justice Briggs refers in his Report that the experience and design of similar systems, here and abroad, does not suggest that there are any inherently insuperable IT technical challenges in the way of a successful design and roll-out of an Online Court, but of course much depends on the right level of resources, funding, testing, maintenance, improvement and refining that are allocated in making the Online Court fully operational.
The current court system is open to the public. To the same extent, the Online Court should be similarly open and transparent. Stage 3 hearings that are not conducted in a trial environment should perhaps be recorded not only to provide a record of the determination of the matter, but also for public access and public legal education purposes. Lord Justice Briggs agrees that the level of success of the Online Court in extending access to justice will depend critically upon parallel progress being made with public legal education generally.
Access to justice cannot depend upon access to the internet alone. Support must be put in place to ensure that those without a computer or internet access, or who lack sufficient language skills, can still use the Online Court. It is essential that support will have to continue throughout the duration of a user’s case in the Online Court. Training programmes for litigants either at court buildings (even with the rate of County Court hearing centre closures – 36 at the time of writing) or from law centres seem to be a must, and sufficient funding must be allocated for public legal education training and support as part of the budget for the Online Court.
In Lord Justice Briggs’ view, the concept of an Online Court offers a radically new and different procedural and cultural approach to the resolution of civil disputes. To achieve an Online Court by April 2020 (and, indeed, where litigation becomes paperless by 2020 due to the planned digitisation of Courts) is very ambitious, however, the Ministry of Justice have agreed to implement the concept of the Online Court and legislation is being prepared to provide for a new online procedure, separate and distinct from the current Civil Procedure Rules.
Given that the current limit for the small claims court is £10,000, the proposed ceiling for the value of claims for the Online Court is arguably about right. A lot will depend on how the first cases admitted to the Online Court are dealt with and whether litigants have full and total confidence using it. While making civil justice more affordable to those who use it by streamlining and modernising how processes are conducted, it is equally important that an ability to navigate the Online Court with confidence (if necessary with assistance) is not lost, otherwise an expensive new initiative that has little or very few users, will not address or resolve the purpose for which it was established. As this proposed change goes to the heart of our civil justice system, Parliament should give it the required amount of oversight and scrutiny between now and 2020.