As part of our regular practice updates, this month we will be considering the latest proposals for expanding ‘e-justice’ in the civil court system. The Civil Justice Council has called for the creation of an online court within the next two years. This would be a radical overhaul of the current UK court system. Key features would include virtual courtrooms, a lawyer-free environment and the possibility of services similar to the eBay disagreement negotiating procedure. The online system would be for claims of up to £25,000, and the idea is backed by Lord Dyson, the master of the rolls, who is head of the civil judiciary in England and Wales.
The reason for the move online is based on the view that the current court system is too costly, complex and slow. This is particularly a problem with smaller claims or where a claim is being dealt with by a litigant in person (where parties represent themselves without legal assistance).
The online dispute resolution (ODR) model proposed in a report written by Professor Richard Susskind envisages a three-tier process:
- Evaluation through interactive services and information
- Negotiation with online “facilitators”
- Resolution by a trained judge relying on electronic submissions, if agreement has not been reached
Rulings by the online judge would be as enforceable as any courtroom judgment.
It has been suggested that one key benefit of this type of system would be that only the judge would need to be legally qualified. Another key benefit is that there would be no need to attend a court, as the judge would base his or her decision solely on the documents submitted electronically. There is some concern that forbidding the possibility of direct personal contact with the judge may prejudice some members of society. To address this concern it has been suggested that an additional, final stage of a telephone hearing could be added to the process if necessary.
The Ministry of Justice is taking these suggestions seriously and has already committed £75m a year to modernising technology within the Courts and Tribunal Service. The report points out that other legal jurisdictions such as Holland and Canada are already using online dispute resolution systems and also highlighted the system used by eBay, saying:
“Each year on eBay around 60 million disagreements amongst traders are resolved through ODR. This is a well-established way of resolving disputes, appropriate for the internet age.”
Critics of the proposals have suggested that they are simply a cost-cutting measure and will work against litigants in person who are already struggling to get access to justice. Some litigants may also feel deprived if they do not get the right to have “their day in court”. Finally, it has been suggested that litigants may not recognise that they are “in court” when submitting evidence electronically and might take the process less seriously and even become less honest.
Despite the concerns it is clear that “enabling technologies” are bound to be introduced into the UK court system soon. Whether this eventually extends to technologies like artificial intelligence (a robot judge, anyone?) or programs which aim to detect human emotions remains to be seen, but both have been contemplated.
Cuts to state funding and lawyers’ high fees have already made the county courts that deal with smaller claims a difficult place for an increasing number of unrepresented litigants. In the current political climate it has been suggested that the court system is creaking and the only way to ensure fair and equal access to justice must come from electronic innovation. It has been suggested that the small claim limit for personal injury claim will increase from £1,000 to £5,000 in 2017. If the limit for other types of claims is also increased from £10,000, then the need to streamline court procedure by electronic means will be inevitable. Any such change will require the current Civil Procedural Rules to be significantly altered. Keep a lookout for future updates in the Journal on this subject.