Articles filed under Access to justice

Remote hearings are here to stay, thanks to Covid-19. That might have happened anyway, sooner or later, but the pandemic has made it both sooner and more certain.

On 3 March 2020 the government’s coronavirus Action Plan declared that “The Ministry of Justice’s HM Courts & Tribunal Service have well-established plans to deliver key services to protect the public and maintain confidence in the justice system.” By 23 March the Coronavirus Act 2020 was on the statute book, enabling rules and directions to be made permitting public and media access to remote hearings broadcast via the internet.

Four years on and Professor Richard Susskind has written the same book he wrote last time, so he says. He jests, yet again. The message and the underlying arguments remain constant; the same analogies are deployed (you know, the drill); but tech has moved on, more is feasible and the vision is developed and refined accordingly. His previous works have covered wide ground: law, lawyers, professions. The narrower focus of this work enables him to treat us to a more extensive, deeper consideration of the subject.

This is not a book about legal technology but an argument for repurposing the justice system to serve more people, employing technologies that are already well established and replacing cumbersome procedures that leave too many denied the justice they deserve.

The Law Society, in its report Technology, Access to Justice and the Rule of Law, published September 2019, defines the “Access to Justice Sector” as “Comprised of all organisations supplying access to justice services. It includes law firms, Not for Profits, individual practitioner barristers and solicitors, in-house legal teams, government bodies, academics, LawTech businesses and associations.” This is not very helpful, but nevertheless true. Everyone involved in the legal sector is involved in delivering (access to) justice in some way, though we might debate the merits.

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.”

Open access to case law in England and Wales is in a very poor state of health, both in terms of the amount of case law that is freely accessible to the public and in terms of the sustainability and development of the open case law apparatus in this jurisdiction.

It is true that the launch of BAILII in the early 2000s radically improved the public’s ability to access judgments and continues to provide a service of immense value. However, the simple fact is that nowhere near enough judgments from England and Wales’ superior courts are available on BAILII.

Efforts to increase public access to the decisions of judgments in this jurisdiction are being hampered by a range of systemic obstacles, including a general lack of awareness among judges, government, practitioners and commentators that a problem even exists, and a lack of understanding of how the judgment supply-chain in England and Wales works and why it is defective.

This article first appeared in Legal Web Watch November 2018. Legal Web Watch is a free email service which complements the Internet Newsletter for Lawyers. To receive Legal Web Watch regularly sign up here.

HM Courts and Tribunals Service held a public event on 6 November, inviting those who represent public court users to see first-hand the progress made over the last year with the court reform program.

With Emily Allbon

Legal design is the process of applying design-thinking to complex legal information, to make the law more accessible and easier to understand for its intended audience. Never was it more evident how ill at ease most of us are when it comes to digesting legal information, than during the pre-GDPR flood of privacy policies into our email inboxes. How many people actually read these missives?

This article first appeared in Legal Web Watch December 2017. Legal Web Watch is a free email service which complements the Internet Newsletter for Lawyers. To receive Legal Web Watch regularly sign up here.

Two recent reports consider in some detail the application of technology in delivering legal advice and assistance, viewed through different prisms. Both are, I think, essential reading if you are at all interested in legal tech as we are in danger of being swept away by the hype surrounding leading edge AI and blockchain developments at the top end of the market.

In an earlier contribution to the Newsletter I made the point that the partly hidden “A” as in Online Alternative Dispute Resolution, which tended to focus ODR’s perceived remit on out of court solutions such as mediation and arbitration, was beginning to disappear altogether as more focus was made on introducing ODR into the justice system itself. How is that progressing?

The new HMCTS divorce online service has moved out of Beta and is now online at www.gov.uk/apply-for-divorce. It offers prompts and guidance to assist people in completing their application. The whole process can be completed online, including payment and uploading supporting evidence.

The service has already contributed to a 95 per cent drop in the number of applications being returned because of mistakes.

Our 2017 review continues with developments in the courts.

keyboard by Martins Strobinders

Co-operative Legal Services (CLS) looked set fair little more than five years ago to become a world leader in the commercial provision of access to justice for low income clients.

In 2011, its then newly appointed director, Christina Blacklaws, announced: “we … want to push the boundaries in delivering advice in other ways for people who would rather access legal services in different ways.”

Alas, early optimism has been tempered; Ms Blacklaws has long gone; and now “Recovery stutters at ABS [alternative business structure] standard bearer” reports The Law Society Gazette. The Co-op once offered a world-leading package of external funding, corporate ownership, unbundling and web-based services.

How did it all go wrong and should we temper expectations of the potential role of technology in low income practice more widely? The answer to this crucial question may well be dependent in England and Wales on the digitalisation of the courts.