Digital courts: We must get it right first time
An online court for money claims up to a value of £25,000 is being proposed in England & Wales.
Reforms to the justice system are proposed in a recent Ministry of Justice white paper and supplementary joint statement.
The statement refers to ‘accessing justice digitally’. So, what kind of digital system should we expect?
The final report of Lord Justice Briggs’ civil courts Structure contains the recommendations for an online court for all disputes with a monetary value of £25,000 or less.
The recommended delivery date of the online court is 2020, so what is the idea?
Money claims constitute 80 percent of the civil court business in England and Wales and 83 percent of those are uncontested.
Around 437,000 new cases were issued on Money Claims Online in the first quarter of 2016. The idea is that automating claims will make justice easier to understand, quicker and less expensive and mean that lawyers, Judges and court space can be better used.
Will the system replace lawyers?
Lord Justice Briggs firmly supports built-in opportunities to obtain bespoke legal advice from a lawyer and recommends that the costs of such advice be “an element of fixed recoverable costs”.
The cause for concern is that independent legal advice would not be sought at possibly the most important stage, prior commencement of a claim.
The risk associated with “knowledge engineering” is that if the system is flawed or the claim doesn’t fit the standard process then litigants may well receive incorrect legal advice about their rights of action leading to detrimental consequences.
The system will be designed to shut down disputes early however there remains the issue of the determined but hopeless litigant’s claim.
If a litigant is not deterred by legal advice in the current system then they are unlikely to be deterred following the computer triage system.
It is not clear whether the online court would decide that there is no arguable case and prevent it from being issued. This may have the effect of stopping deserving cases from accessing the court system.
Lord Justice Briggs did acknowledge the need for trial advocacy particularly where cross-examination is required and again recommends “some fixed recoverable costs” for advocacy.
An online court could bring with it the advantage of simple pre-action requirements and a quicker overall process allowing litigants to obtain a final decision sooner and with the convenience of access through a laptop and perhaps even a smart phone.
It remains to be seen whether the “knowledge engineering” process could be sophisticated enough to ensure that litigants do not go without bespoke legal advice and/or receive incorrect guidance on legal options during the triage process. Consequences of a flawed system could be severe.
There is the important question, what about those who are not IT literate or do not have broadband? The recommendation is that there will be no parallel paper version of the court. It would be left to advice agencies to assist.
Lord Justice Briggs recommends a new Litigant in Person Engagement Group to identify and design the best form of assistance. It remains to be seen whether assistance will work in practical terms and there is argument that the millions of pounds required to developing an online court would be better spent on legal aid.
The question of costs also remains open at the moment. In terms of fees and costs Lord Justice Briggs only states that “its processes would not be free”.
Lord Justice Briggs recommends that some claims be exempt from the online court. Interestingly, he recommends that claims for possession of homes be exempt from the online court system ‘at least initially’.
The proposal is for the new system to focus on money claims and some claims for damages but given time the system may pave the way for online court claims of a greater spectrum and without the limitations on value or remedy.