Sir Geoffrey Vos, newly in post as Master of the Rolls, has made ambitions for his tenure quite clear. Online civil justice must be made a success of. Digitisation of the county courts cannot come ‘a day too soon’, he has said. Sir Geoffrey acknowledges the sweeping changes that are already happening to the legal services industry. The move towards remote justice and a greater use of technology, particularly surrounding the internet, has begun. The promise of reform in the way of more digitisation is good news for all concerned. But the question is: what must be done, and what does it mean for practitioners?
Electronic filing is still not available at all levels of the civil court, nor is it offered for all types of documentation. CE-File, introduced in 2019 to commence and track claims online, is only available for lawyers (but not Litigants in Person) with cases in the Business and Property Courts, Senior Courts Costs Office, High Court Family Appeals Division or for claims and appeals in the Queen’s Bench Division in the Royal Courts of Justice. Moreover, the Civil Procedure Rules’ Practice Direction for submitting documents via e-mail is Byzantine. It is clear that this must change. The rules around e-bundles are better; the judiciary has longstanding and clear guidance on how to put them together and submit them digitally across the civil courts.
Offering a digital service that works for the parties involved in the dispute is key. If the service is cumbersome or impossible to navigate, the civil courts may find themselves hobbled by the private sector. Companies that offer the help of an experienced person who can walk you through the online process of filing a claim and seeing it through to completion have been up and running for a while in the UK (for example, Small Claims Portal), the US (Courtroom5 and People Clerk), and the Netherlands (Justice42). Whether or not reforms to the system can make it more open and transparent to litigants is likely to determine whether or not private sector offerings make hay. On those who may lack the means to instruct either a lawyer or someone with the required expertise, Sir Geoffrey has said that ‘we can’t devise a system purely for the digitally disadvantaged ignoring the digitally advantaged, who will probably be 90% or more of the population’. Whilst this is understandable, it could present issues for those who self-represent and the digital divide is only getting wider.
Perhaps the greater challenge is the Master of the Rolls’ desire to create an ‘online funnel’ for civil claims. It might be assumed this would be a triaging system, identifying cases which could benefit from early mediation or other forms of Alternative Dispute Resolution (ADR). Whether or not this would be compulsory seems to be an ongoing conversation; Sir Geoffrey admitted earlier this year that the Civil Justice Council is currently looking at whether litigants should be forced to mediate. Whether or not the disputes would be handled by trained practitioners or bots (or both) is another. In any case, the recently published Digital Dispute Resolution Rules, from LawtechUK’s UK Jurisdiction Taskforce, make a clear statement in favour of getting disputes out of the civil courts. The UKJT, of which Sir Geoffrey is Chair, state in their Rules that any dispute relating to a novel technology — for example, crypto assets or smart contracts — will go to arbitration if the parties do not have a pre-determined dispute resolution process.
So, what does this mean for practitioners? It is unlikely that an online civil courts system is going to mean lawyers are less necessary — it has been made all but clear that the system will be designed with legal practitioners in mind. However, if Online Dispute Resolution at first instance becomes a fixture this could mean fewer cases actually go to litigation, meaning less work for lawyers. That having been said, any mediation and arbitration proceedings done in the traditional manner could still leave parties in need of legal counsel. And what of a ‘third way’ whereby litigants go to private enterprise to be walked through the process, whilst being charged a smaller fee than they would if they went to a law firm? It is a distinct possibility.
The proposed reforms to civil justice would be welcome; there is no stopping the digitisation of the legal services industry and some would argue that it has been here for a while and it is about time the courts caught up. The problem the courts must surmount is how to build a system that not only works, but that offers a cleaner, better way of doing civil justice for the parties to the dispute. That will require making sure the system does not sink under needless jargon and opaque processes, or otherwise lock people out. If the courts fail on this point, lawyers will be spending more time and effort on navigating this obstacle course for their clients, and litigants may have their heads turned by private companies offering tailored solutions for a fraction of the price.
All opinions my own.
Stuart McMillan | Policy Analyst: Bar Council
Stuart’s work at the Bar Council includes working on new and ongoing efforts to improve the practising lives of barristers. He works with HM Courts and Tribunals Service on their court reform programme and is responsible for the IT Panel, with a focus on new data regulations, LegalTech and AI, and the Alternative Dispute Resolution Panel, where he helps to promote the use of arbitration and mediation as effective methods of dispute resolution across the Bar.