The Online Court and the digitisation of justice

In its Report to the Civil Justice Council in February 2015, Online Dispute Resolution for Low Value Civil Claims, the ODR Advisory Group, chaired by Prof Richard Susskind recommended the establishment by HMCTS of an online court for low value civil claims, called HM Online Court (HMOC). This would overcome the fact that current practice and procedures were “too costly, too slow, and too complex, especially for litigants in person.”

This court service would be in three “tiers”. The first, “online evaluation”, would help users identify their problem, be aware of their rights and obligations and understand the options available to them.

Next, “online facilitation” would involve online mediation and negotiation, supported, where necessary, by telephone conferencing. Some “automated negotiation” might be involved.

If not resolved by mediation, “online judges” would decide suitable cases or parts of cases largely on the basis of papers submitted to them electronically, again supported, where necessary, by telephone conferencing.

Although its terms of reference were restricted to civil claims under the value of £25,000, it suggested that the jurisdiction of HMOC “should also be extended to suitable family disputes and to appropriate cases that come before today’s tribunals.”

The Briggs Report

The following year, Lord Justice Briggs, in his Final Report on the Civil Courts Structure Review in July 2016 proposed the introduction of a new Online Court.

The Court would be designed to be used by people with minimum assistance from lawyers, with its own set of user-friendly rules. It was anticipated that it would eventually become the compulsory forum for resolving cases within its jurisdiction, and on inception should be dealing with straightforward money claims valued at up to £25,000.

He considered in some detail all the pros and cons of such a forum and its jurisdiction. He was not enamoured of the appellation, referring to “the concept (still unhappily) named the Online Court”.

Of particular importance, he included recommendations for helping people needing assistance with online systems, and he recognised that open justice and transparency issues needed to be addressed.

At the time Briggs delivered his Report, money had in fact already started to flow for the implementation of the HMCTS Reform Programme (see below), enabling work to start in earnest on the detailed design and development of the various projects comprised within it. These included the commencement of what was then called the Civil Money Claims project, tasked both with the development of the Online Court and with the digitisation of the rest of the civil courts, and the Assisted Digital project, tasked with developing measures for the assistance of court users challenged in the use of online services, across all the relevant jurisdictions.

The HMCTS Reform Programme

In September 2016, in a joint statement entitled Transforming Our Justice System, the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals shared their vision for the future of HMCTS, saying:

“The Government is committed to investing more than £700 million to modernise courts and tribunals, and over £270 million more in the criminal justice system.

This work has already started. In the criminal courts, digital case files have already removed the need for mountains of paperwork. The Rolls Building – with its new online system which enables cases to be started and managed electronically – has underlined London’s international reputation as the leading centre for business dispute resolution. But modernisation will go much further – extending and enhancing this approach across all courts and tribunals will build on our extraordinary heritage, but provide a system that is straightforward to use for every citizen.”

As of February 2019 the reform programme comprised more than 50 distinct projects, working across all jurisdictions – in criminal, civil, family and tribunals.

The first phase of the reforms focused on: testing early versions of digital services (for example, the divorce, probate and online plea services); creating national teams to deliver more consistent service (such as call handling); putting in infrastructure (including more Wi-Fi); and other, less visible, developments.

Online services that have already been launched in this first phase include:

These are all in public Beta versions, meaning they are fully functional and usable by the public but still subject to testing.

The current phase of the reforms involves making these first services available to more people by: starting work on their equivalents in other parts of the system (eg public family law); building enabling technology services; and developing ways of working that give more responsive and consistent service (such as case tracking and answers to questions about what will happen next).

Service developments in “other parts of the system” include (on the civil side):

  • Court of Protection users will be able to initiate and manage their cases online.
  • The accelerated possession claims process will be made digital.
  • A new online system called CE-File for users, judiciary and staff is being implemented for filing documents and paying court fees in the RCJ and Upper Tribunal.
  • An end-to-end solution will be developed for adoption cases.
  • For all public family law and adoption cases, users will be able to start and manage cases online.
  • Private family law litigants will be able to initiate and manage their cases online.
  • A streamlined digital system will speed up and simplify the process for users who apply for a grant of probate in non-contentious cases.

It’s clear from the above activity that, although the concept of “the Online Court” remains alive and is exemplified in the form of the Money Claims project, the reality is that developments focus more generally on developing digital services enabling users to initiate and manage cases online rather than the “pure” vision of the Online Court as a three-tier service.

To keep up to date with developments with HMCTS digital projects, see the Inside HMCTS blog which provides regular updates on projects and new online services.

The Court and Tribunal Reforms inquiry

In January 2019 the Justice Committee launched an inquiry into the reforms under way at HMCTS. The Committee was interested in evidence of the effects and potential effects of the programme on access to justice, as well as the management of the reform process.

The inquiry is ongoing, but the deadline for written evidence has passed. Some 83 written submissions were received from advice agencies, legal associations and interest groups and many others.

Understandably, many of the submissions question the motivations for the reforms and consider the effects in terms of court closures and the removal of other forms of support.

Looking specifically at the introduction of online courts for the resolution of low value civil cases, in his evidence Richard Susskind considers that the level of debate so far has been disappointing, not least because there has been confusion over what is actually proposed:

“In online courts, human judges determine cases but neither in a physical courtroom nor in a virtual hearing. Instead, evidence and arguments are submitted through an online platform. Judges then deliver their decisions not in open court but again via the online service. The proceedings are not conducted in one sitting by video, audio, or real-time chat. There is no hearing, virtual or otherwise. The process is asynchronous. Members should be particularly clear about the difference between online courts and virtual hearings, because these terms are often and wrongly used interchangeably.”

He goes on to say that, while it is helpful “to draw the distinction between physical courts, virtual courts, and online courts, the reality is that court services of the future will be delivered as blend of some or all of these.” Each part of a dispute will be assigned the most appropriate process: part might be undertaken online, some in a traditional courtroom, and others in a virtual hearing room. Which, to my mind, is to say that the concept of “the Online Court” is messier in practice than in theory.

Digital exclusion and the legal knowledge deficit

In looking at concerns relating to digital exclusion, Susskind believes the critical rhetoric does not align with empirical research, arguing that according to ONS statistics, 90 per cent of adults are internet users and more than a further 5 per cent are users by proxy (eg via children or grandchildren), so that HMCTS’s provision for “assisted digital services” is sufficient.

However, seasoned A2J campaigner Prof Roger Smith points to the evidence of Citizens Advice, who (with 4.2 million issues assisted annually) have the personal contact with users to disprove this. They state that their face-to-face users are twice as likely to be digitally disadvantaged as the average and believe that the “attempt to separate information needs from digital assistance does not work in practice – however convenient it may be in limiting expense” and are concerned that “assisted digital services” as envisaged is focused on providing technical digital help while court and tribunal users at the same time need help with understanding the process they are going through.

Similarly, the Law Centres Network stress that what litigants in person lack is the “fundamental … capability to assess their options and prospects and competently to conduct themselves against a legal adversary who is likely to be represented.”

Law for Life (who operate AdviceNow) refer to the “substantial legal knowledge deficit” in the UK which means that most people do not know their legal rights or misinterpret or misunderstand their rights. If they are able to characterise their problem as legal it more than doubles the likelihood of them seeking legal help and increases the likelihood of getting some kind of help rather than handling the issue. They conclude that “a concerted strategy is required to embed on- and off-line assistance as a pre-requisite to meeting the needs of the majority of the population.”

These entreaties from the advice services take us back to the proposed Tier 1 of the original Online Courts proposal which is perhaps being overlooked – the service should, as a first stage, help users identify their problem, be aware of their rights and obligations and understand the options available to them.

Online procedure

Finally, it should be noted that there is a Courts and Tribunals (Online Procedure) Bill now before Parliament which will establish a judicially chaired committee tasked with developing new, simplified rules around online services in civil, family and tribunal proceedings. We are promised that “the Online Procedure Rule Committee will allow civil and family cases to be progressed more efficiently, as well as allowing financial savings across the justice system. Easy to follow guidance will ensure online services are as simple as possible to navigate and increase access to justice while supporting the uptake of HMCTS’ online services”.

Nick Holmes is Editor of the Newsletter. Email Twitter @nickholmes.

Image: URL Cliche cc by Chris Dlugosz on Flickr.

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