The Online Court that Lord Justice Briggs — the top judge charged with updating the British legal system — has been designing with 2020 as a deadline for the first phase of its introduction will influence jurisdictions around the world. In a speech he gave in London last October — the annual Harbour Litigation Funding lecture — he said that Britain, overtaking Canada, will be first in incorporating newly digitised ‘triage process’ into ‘a fully-fledged court, with binding judicial determination of cases which can’t be resolved.’
Just as I imagine any other unfortunate litigant would — anyone unlucky enough to have first-hand and recent experience of litigation before the revolution — I read his words hungrily. Until someone whose identity remains a mystery posted the trial court’s justification of its judgment against me online, it was — in effect — a private trial of my case conducted at a public venue. Not a single member of the public sat in the public gallery. I did not ask friends or relations of mine to come to court with me because I felt then, as I had all along, that my disagreement with my partner was about matters that we were well equipped to sort out ourselves. He, however, insisted that I hire a lawyer to negotiate with him on my behalf. Even after I had done that, two mediations failed because he refused to give the mediators the information they needed to help us. Most intelligent people I know would say that the catastrophic consequences of yielding to that insistence were inevitable.
If trials were conducted online, I doubt that those consequences would have been possible. Truly open and accessible proceedings would deter anyone with an unfair advantage in the legal system from wielding it like a club. Any striking imbalance in power between litigants would be as obvious as in coercion conducted on Twitter.
Here are some extracts from the encouraging Briggs lecture that show why there is no turning back from the Online Court on this legal reformer’s drafting table, or some equivalent of it. The highlighting in bold is mine:
The Online Court is fast becoming the flagship part of the civil element of the Reform Programme. The latest MoJ [ Ministry of Justice] ministerial statement, from the new ministerial team, and the joint vision statement agreed with the Lord Chief Justice, commits to its development. It will be a new court, accessed by online issue and filing, but that is not its distinguishing feature, since the ambition is that all civil proceedings will share that attribute. Its characteristics or leitmotivs are that it is aimed and designed at and for the ordinary person or small business with no, or minimum and affordable, access to legal assistance, and that it brings resolution (i.e. settlement of the dispute by the parties with assistance) within the mainstream of the process […]. I would call it a Civil Solutions Court, Solutions being short for, and less lawyerly than, Resolution. Its first steady state ambition is to handle straightforward money claims up to £25,000 value at risk, with exceptions (such as for personal injuries) where there is already satisfactory access to justice. It will have very simple, short rules made by a new type of rule committee with large input […] from the voluntary sector, who know what plain language really means to ordinary people, rather than what judges and lawyers think it means.
Again, it is right to characterise this project, as many commentators have, as ambitious. Many aspects of it are already in limited use, such as small claims telephone mediation and judicial ENE, video and telephone hearings and online issue. But others are novel, such as the automated stage 1 triage process designed to enable the litigants to articulate their grievance in a form (but not jargon) which will enable the court to get to grips with it, and to upload their key documents and supporting evidence. That requires painstaking design and iterative testing of the content of successive online screens, tailored to different types of typical dispute. The Canadians are ahead of us, with their recently launched Civil Resolution Tribunal in British Columbia, which uses the same triage process, the design of which they accurately call knowledge engineering. But we will be the first to incorporate it into a fully-fledged court, with binding judicial determination of cases which can’t be resolved.
If this project bears fruit, and it will fail over my dead body, it will plainly be revolutionary. It will be no less than a wholly new way of litigating civil disputes. It will be much more investigatory than adversarial. Judges will have to be their own lawyers. Resolution will lie at its heart rather than being, as at present, part of Alternative Dispute Resolution. The less pervasive but still welcome involvement of lawyers will be characterised by the affordable provision of early bespoke advice on the merits by a qualified lawyer, and specialist services, such as cross examination, only where really needed. This will require a new emphasis on unbundling for solicitors and direct access for the bar. Neither are without their real difficulties, but the continued use of a full retainer for disputes with value at risk up to £25,000 (and many would say much higher) involves costs and costs risk which is just not proportionate. There will be nothing to stop parties using lawyers as much as they wish, but a fixed costs regime will limit the other party’s costs risk to those items which I have described.
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Enabling litigants to do more of the work themselves, and empowering more of them to resolve their disputes without recourse to expensive judicial determination should be the hallmarks of accessible civil justice in the future. It may mean that, in some areas, lawyers will have less to earn from each case. But if the result is to enable many more people to use the courts, and for that purpose avail themselves of affordable, unbundled, professional legal services, where really needed for the vindication of their civil rights, then lawyers should in my view have nothing to fear from this revolution.
COTIN 