The conference took place over two days in December at the headquarters of global law firm DLA Piper and was jointly chaired by Susan Acland-Hood, Chief Executive of HM Courts and Tribunals Service and Professor Richard Susskind, President of the Society for Computers and Law. Its stated purpose was ‘to bring together, for the first time, the global communities of officials, judges, academics, lawyers and legal technologists involved in the introduction of online courts and the cutting edge of digital reform.’
The HMCTS Reform programme in England and Wales has received a good deal of publicity, both for its successes (recently they announced that ‘More than 150,000 people benefited from online justice in 2018’) and for its failures (harsh criticism from the National Audit Office and the House of Commons Public Accounts Committee over delays and budget overruns, as we reported here).
How other courts are changing
There may have been a perception that, having come late to the online court development party, the English legal system is going overboard in both cost and scale. While the latter may well be true, the former is not. As the many contributions from other jurisdictions during the first day of the forum made clear, very few countries have made substantially more progress in this direction, and most have done so in far less ambitious ways.
We heard major presentations from Australia, the Netherlands, Singapore and the USA, and shorter ones from Portugal, India, China, Denmark and Japan. In addition, there was a ‘melting pot’ session of anecdotal contributions by delegates from Scotland, Brazil, New Zealand, Canada, Germany, Ireland and the multi-jurisdictional Caribbean Court of Justice.
The most impressive presentation was the lecture by Shannon Salter, chair of the Civil Resolution Tribunal in British Columbia, which has succeeded in building an online court for low value money claims and property disputes outside the traditional court and legal structures. This was the model which inspired Lord Briggs, in his Civil Courts Structure Review in 2016, to recommend the establishment of the Online Court in England and Wales, which in turn now forms the centrepiece of the current HMCTS Reform project.
The overall impression one got from this global conspectus was that, while quite a number of jurisdictions had tackled the digitisation of court processes such as document filing and case management (in other words creating what might be termed ‘e-courts’), very few had made any substantial progress towards developing fully online dispute resolution (ODR) courts. Where they had done, it was generally confined to very specific forms of case, such as small civil claims (the pioneering British Columbia CRT being the prime example), or traffic or regulatory matters.
Likewise, where video links were used at all they tended to be, as here, mostly for linking remote or vulnerable witnesses to a conventional court hearing, rather than as the basis of the hearing itself, something currently being piloted, somewhat hesitantly, by HMCTS.
Quick wins and setbacks
From this it would appear that the HMCTS Reform programme is, in the sheer scope of its ambition, certainly living up to the hype. And there has been a lot of hype, which ultimately may prove counter-productive. If expectations are continually being inflated, the disappointment will be all the keener when the reality fails to live up to them.
The much-publicised launches over the last year have certainly been impressive and appear to have been well used by the ordinary citizens around whom the systems have been designed. Thus, of the 150,000 people who were said to have ‘benefited from online justice in 2018’, more than 23,000 made applications using the new online divorce portal launched to the public in April 2018, more than 7,500 made online probate applications, and more than 39,000 made online civil money claims.
But when you look at the work still to be done, to provide the end-to-end digitalisation that was envisaged when the project launched in 2016, it rather dwarfs this handful of successful projects, and they begin to look more like ‘low hanging fruit’ or quick wins. Of course, there may be lots of other developments the full benefit of which isn’t yet apparent: it’s just that on the basis of the agile modular development model, you’d expect to see more tangible proof. When you then see reports about parts of the project having to be abandoned or rejigged (such as the recent story in The Register about the abandonment of a ‘key plank’ of the Common Platform Project) it makes you wonder if things are quite as far advanced as they should be, nearly half way through the (already extended) timeframe of the project.
Meanwhile, as many practitioners and litigants can attest, the existing courts estate is being starved of funds for everyday maintenance and the existing case management systems are struggling as a result of staff cuts and reorganisation. The £1.2bn development cost must be seen in the context of an overall cut in the Justice budget of 40% between 2010-11 and 2019-20, including a cut of £1bn in spending on legal aid. Whatever the Reform programme may achieve in the long run, an additional cost will have been the deficit in the proper administration of justice in the meantime.
Wider considerations
The second day of the conference considered some of the more conceptual issues thrown up by the various developments discussed on the first day. There were four panel discussions, on ‘Open justice and fair trials’ (chaired by Lord Briggs), ‘Technology platforms and obstacles’ (chaired by Joshua Rozenberg), ‘Artificial intelligence (AI)’ (chaired by Christina Blacklaws), and on the ’Challenges for policymakers’ (chaired by Professor Hazel Genn).
Among the issues discussed was the need to ensure that online justice was no less transparent and open to public scrutiny than a traditional court process, while at the same time offering a more informal and less daunting mode of access to justice. There was still a need to ensure just outcomes, without cutting corners for the sake of cost and convenience, or even ‘ease of use’ by litigants.
AI and machine learning offered opportunities to increase efficiency and might also provide an opportunity to reduce human bias by ‘depersonalising’ the decision-making process. However, it was important to guarantee the fairness of selection, lack of discrimination and reliability of data used as the basis of algorithmic predictions.
The increasing role of government and tech companies rather than lawyers in the design and control of the legal systems of the future was also a matter of concern, as was the tendency of online courts and virtual hearings to make processes more inquisitorial and less adversarial. Finally, it was important to provide public legal education and to assist those lacking digital skills to make the best use of the digital justice systems of the future.
The conference was summed up in a closing address by Sir Ernest Ryder, Senior President of Tribunals, who said he hoped ‘our appetite for change has been engaged’ by what we heard. ‘Our rules and process have to be intelligible and usable if they’re not to be the exclusive playground of the rich’. In this he echoed what the Lord Chancellor David Gauke had said when opening the conference about the complexity of the legal system making it like a ‘secret garden designed by experts’. So, theoretically, openness and simplicity should win the day, but whether this complex, expensive project will have the outcome remains, still, to be seen.
For anyone interested in following this development, Joshua Rozenberg will be giving his annual Gresham College lecture on the project on 21 February 2019: Justice Online: Are we there yet?
Paul Magrath is head of product development at the Incorporated Council of Law Reporting for England and Wales (ICLR) and a member of the Transparency Project. His book, Transparency in the Family Courts, co-authored with Lucy Reed and Julie Doughty, is published by Bloomsbury Professional.
The post Online Justice: a global perspective appeared first on The Lawyer | Legal insight, benchmarking data and jobs.
From debates over who owes what in tax to a debate over who owes what in the event of an unreliable individual, Playboy Club London Limited & Ors v Banca Nazionale Del Lavoro will be heard on Friday.