The failure of a pioneering online court in The Netherlands should not deter efforts to build more ambitious version in England and Wales, the Master of the Rolls has said. In a lecture this month, Sir Terence Etherton laid out for the first time the scale of the ambition behind the proposed ‘Online Solutions Court’, which will be designed to operate largely without lawyers and to dispense ‘preventive justice’.
The Netherlands’ Rechtwijzer, an online dispute resolution system for landlord-tenant disputes, debt and divorce, was widely seen as a model for 'Justice 2.0' when it was set up in 2014. However, in March this year the project's backers announced it would shut down in July as it had proved financially unsustainable. According to one estimate, it was handling only 1% of divorces in the Netherlands and its technology backer saw no way of turning the system into a commercial proposition.
In his Lord Slynn Memorial Lecture this month, Sir Terence Etherton admitted that the Rechtwijzer had been an inspiration for Lord Briggs' Civil Courts Structure Review, which proposed an online court. 'It might be thought that the failure of the Rechtwijzer does not augur well,' Etherton said. However, he cautioned against drawing this conclusion, claiming a 'fundamental difference' between the proposed Online Solutions Court and the Rechtwijzer.
'Our approach is to develop a court which incorporates ODR into its processes, rather than to develop an ODR platform which sits outside the court system,' he said. 'We are seeking to enhance our civil court, not create an online alternative to it. As such, the question of preference that undermined take-up in the Netherlands is unlikely to be replicated here.'
Elsewhere in his speech Etherton set out the scale of the judiciary's ambitions for the Online Solutions Court - which he said is not yet an official name. It will operate in three stages.
First, it will assist individuals to find the right sources of legal advice and help in order to enable them to consider whether they have a viable legal dispute. By helping individuals before who have not yet reached the stage of beginning legal action it will 'secure access to preventive justice'. Assuming there is a viable dispute 'it will... enable claimants to identify the nature of their claim and submit relevant documents, such as the claim form, online.'
In the second stage, case officers and court administrators 'exercising judicial functions under the supervision of the judiciary' will assist parties to manage the claim and reach a settlement. 'This is a significant departure from the court's existing role as it wil require a court officer actively to engage the parties in mediation and conciliation processes,' he said.
The third stage will see the claim adjudicated by a judge. 'The process will not necessarily take place in a traditional courtroom. It may be carried out online by video-link, by telephone or on the papers.'
Overall, Etherton said, the online court would ensure the core functions of the civil courts are 'not simply maintained but augmented'. While the process will be designed so that individuals can access the system without the need for legal advice, he conceded that lawyers 'will no doubt continue to play an important role in many cases' especially those that proceed to disposal by a judge.
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