#GuiseOnJustice – You wait ages for a portal then two come along at once….! by Tony Guise | June 2021

June 2021

May 2021 was a busy month for civil justice reform.

It all kicked off on 10 May with Sir Geoffrey Vos’ keynote speech at London International Disputes Week 2021 (LIDW21) in which he explained his plan to look to the private sector “…to make the most of what is good about the existing systems, but provide what is lacking, which is cohesion and integration…” (para 17).  Sir Geoffrey is the Master of the Rolls (MR), the second most powerful member of the English and Welsh Judiciary.

This is what the Common Law is best at, pragmatism in the face of political inertia.  In this case the MR’s speech was a reaction to the failure of HM Treasury to agree any further funding for the UK’s Ministry of Justice Modernisation Programme, as the Lord Chief Justice explained in his evidence to the Constitution Committee of the House of Lords, on 26 May at 10:44 onwards.

Just three days after the MR’s speech to LIDW21, on 13 May, Practice Direction 27B was promulgated bringing the new Official Injury Claim portal into being from 31 May 2021 (colloquially, and perhaps unfortunately, named the Whiplash Portal).  This is another Insurance sector pre-action settlement platform and a portal not without controversy for, amongst many other issues, the complexity of PD27B, its accompanying Pre-Action Protocol and the Guide for Litigants in Person by whom it is (mainly) expected to be used.

Next up, on 24 May, was a little noticed amendment to PD51S (the County Court Online portal pilot) extending the life of the County Court Online Pilot until 30 November 2022.

Finally, as if all that was not enough, the long-awaited Damages Claim Portal (DCP or Damages Online) was introduced by the snappily referenced PD51ZB on 27 May.  This is another Pilot and runs until 30 April 2024.

In this month’s column I look more closely at County Court Online and the Damages Claims Portal to see what they tell us about the nature of the Modernisation Programme.

Some of the broad criticisms of the portals as developed by HMCTS include:

• Online solutions should enable the intuitive triage of users’ claims directing users to relevant solutions.  County Court Online and the Damages Online do not provide that with the process beginning at the point of completing the claim form;
• HMCTS’ portals are years behind the curve being limited in scope and failing to enable such basic functions as multiple parties and directions.  Functionality that DisputesEfiling.com (DEF) developed more than 5 years ago;
• Both portals are limited to cases where both sides are represented by professional users who have been registered to use the portal and invited by HMCTS to trial the portals; and,
• When cases exit the portal they fall into the paper system.  This occurs when, for example, a Defence is filed or one party is represented by lawyers who have not been invited to use the portal.

By far the biggest concern is that these portals are built as discrete entities replicating the current structure of the courts.  County Court Online reflects county court practice whilst Damages Online reflects the High Court; both portals support claims for specified and unspecified sums of money.  It is not clear to me why Damages Online was built given County Court Online delivers the same functionality – but let’s leave that issue, for the moment.  By perpetuating the county court structure of the County Courts Act, 1846 and the superior court structure of the Judicature Act, 1875 a major opportunity has been missed to use Cloud-based platforms to remove inefficiencies created by a court structure rooted in the 19th century.  That criticism may run deeper if parties begin to take points that the wrong portal has been used to defend claims.  Such points would echo the way in which the Forms of Action at Common Law exercised their iron grip over court proceedings from the Middle Ages until the 19th Century; possibly beyond, according to F W Maitland.  Choosing the wrong Form of Action caused disaster for litigants reducing civil justice to a costly game of Snakes and Ladders.

Within HMCTS there is limited practical support and resources for the unwary traveller through this landscape.  Such support as is available is spread far and wide with no central repository.  The private sector has already remedied this with Small Claims Portal providing cost-effective resources and support to enable the vast majority of litigants in the Courts to better prepare their cases, assist with Bundle preparation.  The website can also arrange user-friendly fixed fee advice and/or representation provided by regulated and authorised lawyers.

Government funding for home grown solutions looks distinctly unlikely given the political focus in the UK is not on civil justice.  Meanwhile countries such as Brazil and the USA are forging ahead with online pluralistic dispute resolution systems far beyond what England and Wales have at the moment, or will have for the foreseeable future.  Manhattan in New York City, for example, rolled out a pilot of an online system for claims worth less than $25,000 in February 2021, my March 2021 column covered this exciting development.

Against this background one can understand why the MR places such emphasis on the private sector providing “cohesion and integration” for HMCTS’ portals.