Shock to the system

In December 2018 at the first International Forum on Online Courts, in London, Toh Yung Cheong said there needed to be a ‘big bang’ to take justice into a new era of paperless courts and online access.

Recalling the Singaporean judge’s intervention, John Cuss, vice-chair of the Law Society’s Civil Litigation Section committee, observes: ‘I do not think there is any doubt that the unfortunate circumstances of the Covid-19 pandemic have been a catalyst for a huge surge forwards in terms of digital and e-working.’

The UK went into lockdown on 23 March, leaving only 42% of the 370 Crown, magistrates’, county and family courts, and tribunals across England and Wales open for ‘essential face-to-face hearings’. At the same time, guidance was issued in civil and family cases to ensure ‘remote’ hearings could be conducted in ‘as many cases as possible, subject to judicial discretion’. By 24 April, 90% of the hearings still taking place were using audio and video technology, data from HM Courts & Tribunals Service (HMCTS) shows.

Peter Causton, director of ProMediate and a member of the Society’s Civil Justice Committee, notes that until coronavirus hit, digitisation and the use of remote hearings were being introduced via a reform programme launched in 2016 by HMCTS to modernise and upgrade the courts and tribunals system.

A central component of the reform strategy was the creation of an online court through which most civil disputes in England and Wales would be resolved. Originally due to be completed by April 2020, the £1.2bn programme has suffered delays and is now set for completion by December 2023.

Professor Richard Susskind, a technology adviser to the lord chief justice, explains that the ‘online court’ is distinct from the virtual alternatives to physical courts that have sprung up during the Covid-19 crisis. Unlike video or audio hearings, the online court is an ‘asynchronous process’ that does not require participants to be present at the same time.

‘There isn’t actually a hearing at all,’ he says. Instead, the idea is that parties ‘could simply sit at their machines in their kitchen, lay out their claims in ordinary language, and a decision come back through [electronically]’.  

The nearest thing to the ‘online court’ in England and Wales is the Online Civil Money Claims (OCMC) digital service for small claims, which account for most claims in this jurisdiction. Public beta tests started in March 2018 and enable litigants in person to make claims not exceeding £10,000 (the claims threshold was recently increased from £1,000 to £10,000). By 13 May this year, 137,157 claims had been issued using the service, and 343 out-of-court settlements reached, data compiled by HMCTS for the Gazette shows. 

The process includes an opt-out mediation pilot for claims of less than £300. This started on 9 September 2019 and by 1 April this year, 636 claims had been referred for mediation; 92% were heard and of these, 67% were settled.

There is also a version of the system that legal professionals can use to test a procedure for filing multiple claims online on behalf of their clients. Launched with 10 firms in September 2017, its users have access to a digital portal for issuing Part 7 ‘unspecified’ civil proceedings.

On 21 April, HMCTS rolled out the service more widely to ‘provide professional users with access to digital platforms that supported them in their new ways of working from home’. In the four weeks to 18 May, 337 law firms and 1,802 users registered for the service.    

Two further pilots involving eight courts started in September last year. One gives judges the facility to decide cases ‘on the digital papers’. In the second pilot, an ‘enhanced’ case officer views claims of £300 or less and makes appropriate direction orders.

HMCTS says the next priority is to move the OCMC services into Courts and Tribunals Service Centres. These are dedicated centres being set up to provide centralised administrative processing to court users, as well as a national online and telephone service. The agency also plans to introduce ‘evidence uploading’ later this year and enable more online settlement and negotiation.  

So what is the user experience? The online service is available 24 hours a day, 365 days a year. By using validation and automation to remove lengthy administrative processes, it can take only a couple of days from claim submitted to directions order made, compared with about 20 weeks using the paper process, HMCTS says. An exit survey on the OCMC digital service shows 90% of users are ‘satisfied’ or ‘very satisfied’.

In July 2019 Sir Terence Etherton, master of the rolls, told the court and tribunal reforms inquiry conducted by the Commons Justice Committee that the OCMC was not an ‘online court’. If settlement is not achieved through the online process, disposal of the claim is still undertaken in a physical setting – although claims could be decided in future by video hearing.

Susskind says: ‘If you want to see the best example of the whole process in action, you should look at the British Columbia civil resolution tribunal (CRT).’ Canada’s first online tribunal is ‘the most finished item’ and ‘the full three-tier vision’, he says. 

He adds: ‘The view that we came up with and that Lord Justice Briggs endorsed [was that] it wasn’t just about putting judges online. It was also about having other ways that we could perhaps contain and avoid disputes – of having, for example, a case officer who would, online or even by telephone, communicate with the parties and in the spirit of ADR [alternative dispute resolution], but within the court system, find some kind of non-judicial settlement.’

He argues that with most people unable to afford lawyers, this ‘extended’ court would also provide ‘tools’ to help parties identify their problems and understand their rights and obligations, as well as the options available to them.

This is exemplified by the CRT’s Solution Explorer. ‘If you have a legal problem in particular areas that are covered by that tribunal, it will ask a series of questions and provides some basic diagnostics,’ he says. 

Susskind adds that this ‘three-tier vision’ has not been executed in the money claims area, but he points to Divorce Online as ‘a good example of taking quite a complex process and helping clients with diagnostics and to understand what their own particular situation is’. That service enables people to apply for an uncontested divorce, upload evidence and pay online. HMCTS returns less than 1% of online applications because of user error, compared with 40% in the old paper-form system.

But is it being tried out with too little scrutiny? Roger Smith, solicitor and visiting professor of law at London South Bank University, an expert in legal aid, human rights and access to justice, argues: ‘HMCTS has not put enough resources into independent research into what it is doing since it started its reform programme.’ That programme consists of more than 50 individual projects across crime, civil and family courts, and tribunals.

Smith says the reforms were designed partly to increase access to justice, but particularly ‘to deliver cuts to staff and to the costs… The National Audit Office told them they were way behind on [the latter] and they extended the deadline’.

HMCTS has already closed 127 sites in England and Wales, generating £124m through property sales since the start of estates reform in 2015. It plans to close a further 77 in the future.

‘The perennial fear is that the court service is selling the properties and taking the money and not reinvesting it in technology,’ says barrister Thomas de la Mare. He suggests the plan may suffer from the decreased ‘appetite for commercial property’ post-Covid-19; though his comments came before Boris Johnson’s pledge to invest £142m in the courts estate last week.  

Representatives of the legal profession, including the Law Society, have raised concerns about how online services may disadvantage users with low digital or legal literacy, and plans to extend the OCMC above the current small claims limits.

Society president Simon Davis says: ‘Overall, our position has been that we welcome the digitisation of existing processes and we believe this has been working relatively well. We agree that modernised court services and efficient use of tech could benefit all users, provided it does not come at the expense of justice. Those who use the system must be able to get independent legal advice and representation from qualified professionals at the point where they need it.

‘A concern we do have, however, is that if litigants in person bring claims that are above the small claims limit, they could potentially become subject to an adverse costs order if they lost their case, including having to pay the other side’s costs. We have raised this particular issue with HMCTS and continue to do so.’

Gareth Raisbeck, a partner and head of dispute resolution at Neath Raisbeck and Golding Law, and a committee member of the Society’s Civil Litigation Section, is also critical of the reforms.

‘The [OCMC] pilot is extremely limited in its scope’, with implementation so far representing ‘a tiny proportion of court work’, he says, pointing to the county court, which issued 2.1m claims in 2018.

Raisbeck, a commercial litigator, points to another civil project, the High Court’s CE-File (an electronic filing and case management system), which he describes as ‘clunky, rigid and unimpressive.

‘We are still without any real insight into what the online procedure rules will look like, and whether they will wholly depart from the current processes or whether Briggs’ recommendations will be followed,’ he adds.

The Courts and Tribunals (Online Procedure) Bill, introduced in May 2019, failed to complete its passage through parliament before the proroguing in October 2019. The bill would have introduced an Online Procedure Rule Committee (OPRC) to draft and oversee online procedure rules. The Law Society has recommended that litigants should be able to choose between an online procedure or a traditional court procedure.

But will rapid growth in the number of remote hearings that use off-the-shelf technologies such as Skype and Zoom undermine the ambition to digitise and deploy state-of-the-art IT for all procedures and hearings? HMCTS told the Gazette that ‘it is too early to say what long-term effect, if any, Covid-19 will have on our reform work in the civil jurisdiction’. Since that comment, however, the PM has announced that £30m is to be spent on equipping 750 more courtrooms to hold remote hearings within six months.

Causton says: ‘A gulf has emerged between regional county courts, which have largely vacated hearings, and the High Court in London and Manchester which have adapted more readily.’ But he adds: ‘There is no turning back from the adaptations used in the coronavirus pandemic. It is apparent that there can be large cost and time savings associated with remote technology… If anything, there will be more investment in technology in future. Fewer court buildings will be needed, or they will be designed differently, as many current buildings do not have sufficient space for social distancing.’

Raisbeck says that while telephone and video hearings are probably here to stay, ‘the implementation of an online court, which is operational and accessible for unskilled litigants, is likely to take a decade’.

If the ‘austerity caused by the pandemic and any seemingly inevitable recession will slow progress of the online court project for want of investment’, courts will ‘struggle’ with ‘the significant bottleneck in claims that will be issued or progressed post-lockdown proper’, he says.    

Cuss points out: ‘While online courts and digital access to court initiatives have been very successful in expanding access to justice, this has not helped tackle the huge backlogs of cases and claims in different jurisdictions.’ It is, he adds, ‘widely recognised that alongside online courts, there needs to be an expanded use of ADR to be incorporated into such online procedures’.

According to Smith, the danger is that ad hoc measures acceptable in the immediate response to the pandemic will be ‘baked into the system’, to the detriment of lower-value claims and litigants in person.

‘The same government that gave us the austerity of 2010 will give us [post-Covid-19] austerity,’ argues Smith. ‘It’s going to be what they see as the frills in the system that will be cut, so there won’t be the same attention for unrepresented people… The problem, overall, is that there is a digital divide in the country, and some people will not be able to handle going digital.’

The answer has been the assisted digital pilot, he says. This is a face-to-face support service for users of HMCTS online services, such as OCMC, divorce, probate, social security and child support.

Briggs LJ was very aware of this issue. He said ‘the success of the online court will also be critically dependent upon digital assistance for all those challenged by the use of computers and upon continuing improvement in public legal education’.

Legal aid for civil litigation had performed that function of delivering public legal education until it was largely removed in 2013. But there are other means to provide it.

Briggs has pointed out that exemplars such as California and British Columbia have offered a way forward in providing public legal education in the absence of legal aid. But as Raisbeck observes: ‘The centralised resources available in the Justice Access Centre in Victoria, British Columbia, discussed by Briggs are leaps and bounds beyond those available here’.

In its response to the ‘Transforming our Justice System’ consultation in February 2017, the MoJ promised that ‘where HMCTS services have moved online… we will ensure that our assisted digital support takes into account the needs of those who are elderly or have disabilities, those with poor literacy or English skills, and those who lack access to technology because of cost or geography’.

The Commons Justice Committee report on its inquiry noted that take-up of assisted digital had so far been ‘low’. It said that HMCTS had ‘not taken sufficient steps to address the needs of vulnerable users, who lack adequate legal advice and support. Face-to-face support is essential. We recommend that by April 2021 the network of assisted digital online centres be extended to deliver comprehensive national coverage with walk-in access.’

HMCTS has been working with national digital inclusion charity the Good Things Foundation to develop (the now renamed) Digital Support service; their data shows that by 31 January this year, 457 people had attended appointments through 22 participating centres since the pilot started in September 2017.

But Smith remains sceptical. ‘It is pretty clear that it will be dumped in the rush to get the programme on financial course – that has always been the danger,’ he says.

What happens next in the development of the online court will clearly be influenced by the judiciary’s adaptations during the pandemic.

De la Mare praises courts and tribunals ‘for doing their very best in trying circumstances to maintain continuity of justice. They are ad libbing it and busking it the best they can, and for the moment it is tolerable, but it is a long way from being optimal’.

He describes the judiciary’s response to Covid-19 as ‘a giant dummy run or experiment or chaotic set of pilots’ and is ‘hopeful that real lessons about what works and doesn’t work will be learned’.

Earlier this month, the CJC published a ‘rapid review’ of the experience of civil court users during the pandemic. The review, led by Dr Natalie Byrom of the Legal Education Foundation, found ‘broad consensus’ among respondents (mainly lawyers) that in personal injury and civil money claims, certain types of hearings, including interlocutory and procedural hearings where both parties are represented, were ‘suitable’ to be heard by video.

Respondents also said video should be the ‘default position’ for stage three hearings, small claims, fast track trials, and interim hearings. Skype was the most commonly used platform for fully video hearings.

Etherton concluded: ‘The evidence collected by this review will be invaluable in shaping the way forward for the civil justice system, both immediately and in the long run.’

 

 

Marialuisa Taddia is a freelance journalist