Two recent documents will be of interest to those who are concerned (in the widest sense of the word) with the development of online courts in England and Wales. If you wonder why this is of relevance to my generally ediscovery-focused readers (concerned mainly with high-end litigation) the answer lies partly in the fact that every component of the cost of litigation is relevant to the willingness of parties to litigate, and to London’s position in that battle (I have an article coming up about Singapore on that subject). Those with big discovery / disclosure issues are interested also in an upward adjustment in the acceptance of technology generally, by both the Ministry of Justice and the judges. Before you get to the technology, there are wider issues to contend with.
One of the documents is the response sent by Professor Richard Susskind on behalf of the Online Dispute Resolution Advisory Group of the Civil Justice Council in answer to the interim report of Lord Justice Briggs’ Civil Courts Structure Review. The other is a paper written by David Harvey, recently retired as a judge in the District Court in Auckland, New Zealand, and perhaps the most informed and articulate judicial thinker about the future of dispute resolution. The hopes of all of them – Briggs, Susskind and Harvey – will, I fear, be undermined by funding issues and the supine indifference of the relevant staff at the Ministry of Justice.
To me, the most significant part of the letter from the Online Dispute Resolution Advisory Group comes towards the end in paragraph 14 headed Role of lawyers. It is worth quoting the paragraph in full:
We do not support the view that one of the aims of introducing the online court is to eliminate lawyers from the dispute resolution process. When you write that, the online court will be ‘designed … for use by litigants without lawyers’ (6.5), we agree with this if you mean (as you have clarified in your article, ‘The Online Court’, in Counsel, April 2016) ‘without the need for lawyers’. However, we understand that some readers have interpreted this as a concerted attempt to exclude lawyers. We do hope that the online court will be sufficiently easy to use that, in those cases where instructing lawyers would not be a proportionate expense, litigants in person will be able to enforce their entitlements without legal representation. But, we do not think it appropriate, for public policy and legal reasons, to exclude lawyers from participating in the work of the online court.
I was one of those who read Lord Justice Briggs’ proposals as “a concerted attempt to exclude lawyers”. It seemed to me, as it did to many others, that improvements in the mechanics of the delivery of justice were a free-standing ambition involving a mixture of simplified rules and improved processes. Why should such proposals deliberately sideline the professional specialists who are qualified, experienced, regulated and insured to help litigants?
The analogy with medicine is not exact, perhaps, but the proposals seem to me equivalent to providing a new medical centre and encouraging patients to come in and use its facilities to diagnose their afflictions and operate on themselves.
David Harvey’s paper is called From Theory to Practice – software models and evidence for the online court. It looks at developments in a number of jurisdictions, including the Netherlands and New Zealand.
It distinguishes helpfully between “e-Filing” and “i-Filing”: the former amounts to not much more than the mechanisation of the existing manual processes which, as David Harvey puts it, “may reduce the filer’s courthouse trips” but otherwise adds little to efficiency.
iFiling implies “interactive intelligent technology designed to guide filers through a series of easy-to-understand questions online” which is more in line with what is envisaged, as least by Richard Susskind.
My reservations lie not in the ambitions but in the dependence on government funding, judicial interest and Ministry of Justice competence.
The operational side of HM Courts and Tribunals Service has long been in serious disarray judged by the daily experience of those who suffer from the multiple tiers of incompetence which they encounter when trying to manage cases. Complaints on the criminal side include a secure email system which must be used but which does not work and a mixture of incompetence and deliberate obfuscation by the Crown Prosecution Service; both civil and criminal practitioners suffer from listing cock-ups and from inadequate court facilities at the simple level of wi-fi and equipment like video players and online interview systems, never mind anything more sophisticated (like judges, for example, who are stretched too thinly across a creaking system).
On top of that, we now have a list of courts which are closing; oily Justice Minister Shailesh Vara, who faithfully and unthinkingly repeated every lie peddled by the MoJ in the Grayling years, promises an investment of £700 million to “transform the experience of everyone coming into contact with the courts” but is unable to give any details of the investment (see articles here and here.
Anything Vara says is to be heavily discounted – his problem is not ignorance or stupidity but the dishonest application of shiny gloss to every depressing MoJ pronouncement. Although he has himself said this…
When you are putting in place a £700m-plus programme of court reform [opposition MPs have] to take it on trust we will do our damndest to make sure everything fits in and is timely and orderly because if [it does not] there will be one massively chaotic justice system.’
(full article here).
…we already have a “massively chaotic justice system” and all Vara can tell us about the future is that a large sum of money will be thrown at it. We have heard that one before.
Project management has never been a strong point at the Ministry of Justice, and they seem perpetually clueless (perhaps indifferent is the right word) about assessing risk, determining impact and budgeting.
It all looked bad enough anyway before Natalie Ceeney, hired by HMCTS in January 2015 to take charge of the £700 million modernisation programme, suddenly announced, on 5 May, that she was leaving (reported by the Law Society Gazette here).
Even cynics like me had been given some hope by Ceeney’s appointment, so what has happened? Some have suggested that she might not be quite as talented as we hoped. My own guess is that she has caught wind of a scaling-back of the investment (the gap between promises and delivery is a feature of this government, as it was when Blair’s first government promised court funding and then withdrew it). It is equally possible that, having had 16 months to eye up the MoJ team, she has decided that they are not fit for purpose and is scuttling away from an already listing ship before it sinks.
Last week, the Supreme Court, no less, had to consider an argument about the costs of printing bundles. More than £200,000 had been spent – you can read about it in Gordon Exall’s article here. We shrug our shoulders and say “Well, that’s how it is here”. It is all of a piece with MoJ ministers who mouth dishonest platitudes while doing nothing to change things, a Treasury which is concerned only with slashing direct costs and raising court fees, senior MoJ officials whose pensions are secure however deep their incompetence, court staff who have lost the will to care, a Rule Committee which seems to admire complexity for its own sake, judges (some of them) who think the bakelite telephone a dangerous innovation, and lawyers (again, with honourable exceptions) who find the status quo profitable.
It does not have to be like this. We could make a start by improving the process by which lawyers issue proceedings and navigate the formalities of steering a case through the court system.