Online courts: a potted history to date
In March 2014, the Ministry of Justice (MoJ) announced a radical courts reform plan for 2015 to 2020. In February 2015 the Civil Justice Council (CJC) set out its vision for an online court in its paper, Online Dispute Resolution for Low Value Claims, predicting that “two major benefits would flow … an increase in access to justice … and substantial savings in cost”. Professor Richard Susskind, the leading advocate of online courts, was a major contributor to CJC’s thinking.
Lord Justice Briggs undertook a government sponsored review of civil court structures published in July 2016. The Briggs Review recommended the creation of an online court as the remedy for inadequate access to justice for ordinary individuals and small businesses, envisaged as “[Litigant in Person] oriented courts and tribunals across the whole field of civil, family and tribunals", with distinct rules and procedures, including:-
- Making it compulsory for claims within its jurisdiction, setting the eventual ceiling for claims at £25,000;
- Early stage Case Officers making ‘recommendations’ for cases;
- Alternative Dispute Resolution, free advice and early ‘determinations’ as to merits;
- Judge determinations of substantive obligations for unsettled disputes at earlier stages (in traditional or video trials, telephone hearings or on paper); and,
- HM Courts & Tribunals Service and the voluntary sector provision of public legal education, including how to use the online court to settle disputes.
In September 2016, the Ministry of Justice consulted over a range of issues, including an Online Court and in February 2017 the Prisons and Courts Bill was presented to Parliament. The Bill proposed the introduction of an online procedure for civil, family and tribunal proceedings; however it ran out of time in the last Parliament and will be re-introduced as the Courts Bill.
Critiques
In a recent UCL lecture Professor Susskind set out the “moral case” for online courts, namely greatly increased access to justice for individuals and small businesses. In this vision, going one step further than Briggs LJ:
- Parties no longer congregate physically to resolve differences;
- There are simplified rules and procedures, with common practice across civil, family and tribunals; and,
- The system delivers affordable, quick, intelligible, proportionate access to justice.
The Bach Commission in a 2016 report, The crisis in the justice system in England & Wales identifies key access to justice shortcomings, including inadequate public legal education and out of date technology. The solution, according to the Commission, is not simply reversing legal aid cuts (although the Commission is highly critical of the LASPO Act) but simplifying the system. “Technology has a vital role to play [however] … For many individuals, [the] element of humanity may be essential for meaningful interaction with the justice system … There will always be a large part of the population who will need such face-to-face support”.
Lord Neuberger, in a recent speech to the Australian Bar Association, described online justice as “quick and dirty”, but better than no justice. For Neuberger the driver for online courts has flowed mostly from a dire legal aid situation than from improvements to the current quality of justice. Vocal opposition has also come from The Bar Council; whilst welcoming courts modernisation, they stated “…There is a real risk of entrenching a two-tier justice system”, citing a risk of inequality of arms between represented organisations and LiPs. The Bar Council also identified advocacy and face-to-face justice as key components of effective justice.
Commentary
It is hard to resist Professor Susskind’s starting point: What’s the mischief here and how can we do better for end-users? The thrust of his argument that traditional pathways to justice are often disproportionate and unintelligible is spot on; however that does not remove need for legal help in some online cases. Whilst supporting the development of an online court we believe that it is important to say clearly, as per Neuberger, that it does represent a different approach to justice with a risk of becoming two-tier – especially for those who are digitally excluded. This is the intellectually honest position. Consequently we believe that any future online court system should adopt more inquisitorial structures, with Case Workers and judges taking a more investigatory role, and that there should be assisted digital services.
We agree also with Briggs that levels of public legal education (PLE) are at unacceptably low levels, especially at a time of increased media focus coming to bear on judges and high profile case outcomes. So online courts represent a new level of challenge for public legal education, as they will deal with yet more litigants in person. Although PLE is not our primary focus, LawWorks have a strong interest in all these legal information, process and policy issues will be following developments closely.