Senior judge says people seeking civil redress in England and Wales will have to go digital
The failure of an online civil court in the Netherlands does not condemn the prospects of a similar venture in the UK, one of England and Wales’ most senior judges has said. The crucial difference is that, unlike in the Netherlands, Britons will have no alternative to using the new “online solutions court”, which is due to be piloted from next month.
Sir Terence Etherton (pictured), master of the rolls, used the Lord Slynn lecture at the Royal Courts of Justice to set out the Government’s ambition to replace large parts of the physical courts system with digital procedures - and to allay lawyers’ and civil libertarians’ fears about the programme.
A Courts Bill to enable the transformation was announced in last week’s Queen’s speech. But the Ministry of Justice and the senior judiciary (constitutionally independent of the Government) are pressing ahead in anticipation of the legislation being passed.
Two distinct digital judicial procedures will be created under the legislation. The first involves replacing some of the workload of magistrates’ courts with a system enabling people charged with certain non-imprisonable offences, such as fare evasion or fishing without a licence, to plead guilty and pay a penalty online.
The second is an entirely new court process to take over a large part of the everyday work of the county court - managing civil claims worth up to £10,000 by businesses and individuals.
Unlike the plead-guilty online system, use of the online court will be mandatory for huge numbers of people seeking redress in disputes over faulty goods, unpaid commercial debts and minor personal injury claims. In his speech, Etherton set out how the system will work.
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 help parties to manage the claim and reach a settlement. "This is a significant departure from the court's existing role as it will require a court officer actively to engage the parties in mediation and conciliation processes," Etherton 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."
A two-year pilot of the Online Solutions Court is to start next month, with HM Courts and Tribunal Service (HMCTS) providing face-to-face assistance to the half of people signed up to it who are expected to need help with filling in forms.
Etherton admitted that there are reasons to be sceptical. First, he cited the poor record of public sector IT projects, but said that lessons had been learned.
Secondly, he acknowledged the fate of the Netherlands’ Rechtwijzer, an online dispute resolution system for landlord-tenant disputes, debt and divorce that was widely seen as a model for "Justice 2.0" when it was set up in 2014.
In March this year the project's backers, including technology partner Modria, 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 Modria saw no way of turning the system into a commercial proposition.
"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 (online dispute resolution) 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."
Overall, Etherton said, the online court would ensure the core functions of the civil courts are "not simply maintained but augmented".
The pilot is beginning with a private beta phase, in which the service will be available via invitation only. In January 2018 this phase will move to public beta, in which it will be opened up to all court users.
HM Courts and Tribunals Service’s aggressive approach to digital by default certainly deserves wider attention.
Image from Courts and Tribunals Judiciary, Open Government Licence v3.0