HM Courts 2.0: a digital future

Senior members of the judiciary have thanked the government for saving the courts. In a message last month that came close to jeopardising their political neutrality, two judges pronounced themselves ‘satisfied’ that the Treasury’s £700m investment in courts and tribunals over five years would be ‘sufficient to enable us to install modern IT, reorganise and improve court and tribunal buildings and to make the necessary changes to processes and procedures’. Reducing costs overall had involved difficult decisions, they added, ‘but the alternative was a precipitous decline’.

The statement was signed by Lord Thomas of Cwmgiedd, who has less than two years left to serve as lord chief justice, and Sir Ernest Ryder, the recently appointed senior president of tribunals who, with 12 years before he reaches retirement age, is a dark horse for chief justice after next. Their challenge is to ‘fully digitise the courts’, as the Treasury put it, ‘moving from a paper-based to an online system’. The investment will be funded by selling underused courts and releasing land for new homes, saving approximately £200m a year from 2019/20 onwards.

That, at least, is the plan. A Merseyside surveyor, commissioned by local solicitors who are fighting plans to close the recently modernised St Helens court, said there was already a glut of new apartments in the town centre. And nobody trusts the government to create a computer system that will work.

But those problems will simply have to be solved. ‘Reform to the court infrastructure is essential,’ the lord chief justice said shortly before the announcement. Delivering the Lord Williams of Mostyn memorial lecture, Thomas questioned whether the structure of the civil courts in England and Wales remained appropriate for the 21st century. The boundary between the county court and the High Court’s jurisdictions had become ‘increasingly blurred’, he said. There had been ‘a gradual coming together of the way in which the judges in the courts and the judges in the tribunals work’. Technology might enable the creation of an online court for civil claims.

Thomas is awaiting the findings of a review that he and master of the rolls Lord Dyson commissioned in July. They asked Lord Justice Briggs to review the divisions between the civil courts (including the Court of Appeal), the family court and private providers of civil dispute resolution services, making recommendations for the deployment of judges and ‘delegated judicial officers’ to particular classes of case. Briggs is expected to deliver his interim report this month. If it is well received, he may find himself succeeding Dyson and putting his recommendations into effect.

You can see how the senior judiciary is thinking. Problem: too many employment judges with nothing to do because people who have lost their jobs cannot afford the tribunal fees introduced in 2013. Solution: redeploy employment judges to the county court. Problem: claimants cannot afford court fees. Solution: buy a cheap-and-cheerful online court from a company such as Modria – as used by the world’s biggest online marketplace.

In their book The Future of the Professions (see also Reviews, p34), Richard and Daniel Susskind report that eBay handles as many as 60m disagreements a year among its traders, more than three times the number of lawsuits filed in the US court system. The eBay dispute resolution system is the model for the internet-based court recommended by Susskind père in his report for the Civil Justice Council in February.

It would have three levels. The lowest would provide online evaluation, helping users to categorise their problem and explaining the available options. Tier two would bring in online facilitators to help parties through mediation and negotiation. Only the third tier would require online judges, full- and part-time members of the judiciary who would decide disputes on the basis of papers submitted electronically – though supported, where necessary, by telephone conference calls.

Susskind’s advisory group said it expected ‘HM Online Court to be launched in 2017’. That sounds ambitious. At present, large elements of the work done by HM Courts & Tribunals Service ‘remain manual, or done on green-on-black IT’, its chief executive Natalie Ceeney said in October. As a result, its newly hired graduates had to learn how to use an IT system without a mouse or a browser.

But, as Thomas said last month, ‘there is no way in which the present system can continue.’ HMCTS spends a third of its budget on running and maintaining its buildings. And yet more than a third of the courts sat for less than half the time available to them. Meanwhile, the UK has the highest rate of internet service usage in the world, with 85% of the population online.

Reform is never easy. But selling courts to buy computers is clearly the way to go.

joshua@rozenberg.net