Deputy District Judge Peter Causton looks at how technological change might impact court proceedings.
Imagine it is 2050 and you are making a claim. You log on to your ICourt app and upload your claim form, confirming that you have taken part in an online mediation. Within 28 days, according to the Civil Procedure E-Rules 2050, the defendant has to upload their defence. If the claim is worth less than £100,000, the ICourt system will make an automated preliminary ruling. If this is not accepted by the parties, then ICourt will make an appointment for a trial to take place online before a part-time judicial officer employed by ICourt, who will conduct the hearing from her home by Skype. Costs are not recoverable in civil proceedings; the process is inquisitorial rather than adversarial, following the implementation of the EU Harmonisation of Justice Directive 2020, so you represent yourself following the guidance in the Self Representation Practice Direction. Should you be unhappy with the decision, you can appeal via the IAppeal app.
This may seem like a fantasy, but if the current rate of technological change continues, and if the budget is available, then it may not be too far from reality.
On 8 September 2014 I presented a webinar on the subject of Alternative Dispute Resolution and Online Dispute Resolution at the Law Society's Access to Justice Day. I was co-presenting with Professor Richard Susskind, author of Tomorrow's Lawyers.
Professor Susskind is a member of the Civil Justice Council (CJC) advisory group, set up to explore the role that online dispute resolution (ODR) can play in resolving civil disputes of a value less than £25,000 in England and Wales. The CJC advisory group will undertake an initial cost/benefit analysis of ODR as an alternative and accessible means of resolving disputes, identifying any limitations and drawbacks of the processes and consider the overlap between ODR and virtual courts. It will also start the policy process of considering options for ODR provision and regulation. A report will be prepared for the CJC, with recommendations for next steps or further research required.
During the webinar I spoke about the ways in which alternative dispute resolution (ADR) is increasingly used in the courts, providing cost-effective solutions for those who are excluded financially and businesses who want to save costs (what business would not want to save costs?). I explained about the costs incentives and penalties that are causing people to choose ADR over traditional court processes. I also talked about the impact of the Jackson reforms and pressure from Europe to encourage mediation.
Professor Susskind spoke about the exponential increase in IT and predicted that the courts will embrace this. He explained that it is now possible to hold the entire musical work ever recorded in the palm of one's hand and that more data is produced in two days than in the entire history of the world up to 2003. He encouraged lawyers to make more use of social media, saying that lawyers are not using it as much as the public, and to come up with new ways of working. Greater use of IT has led to innovations in everyday life - for example, the cashpoint - and could do the same for lawyers.
One interesting point made was that more people now have access to the internet than to justice. If that is the case, how can the internet increase access to justice? One can see many ways in which it could do so, such as providing advice and case preparation online, video conference hearings, online mediation, etc. IT has already begun revolutionising the way in which solicitors work, with electronic time recording, outsourcing of document creation, data rooms, electronic disclosure, voice recognition dictation software and, of course, all-prevalent email.
There is a clear intent to improve IT in the court system, albeit the start has been somewhat slow. In the court service, documents can often be filed by email and some claims can be issued electronically (for example, Money Claims Online). Courts use telephone and video conferencing to a limited extent already, but this is likely to increase.
On 28 March 2014, the Lord Chief Justice announced a reform programme to deliver 'a more effective, efficient and high performing courts and tribunal administration' through the use of modern technology. This is to be enabled by a new one-off investment, averaging up to £75m per annum over five years from 2015/16. It was said that the investment would enable the legal profession and other justice agencies to adopt more efficient and cost-saving working practices by using digital technology in their dealings with the courts and tribunals, and that users should only need to attend at a court or tribunal when absolutely necessary. The idea is to give court users maximum flexibility as to how they access the courts, tribunals and their supporting administration.
There has also been a greater focus has been on introducing more effective IT for the three jurisdictions of the Rolls Building, namely the Chancery Division, the Commercial Court and the Technology and Construction Court, concluding in October 2015. The online filing pilot for the Technology and Construction Court is scheduled to go live in March 2015, while the live deployment of online filing for the other two jurisdictions is on target to go live in Autumn 2015. Plans are underway to develop an equivalent system for the wider service as part of the HMCTS Reform Programme.
International developments will also have an impact. The European Parliament, in the context of amending the EU small claims procedure, is considering introducing video and telephone conferencing in member states within two years and allowing payment of court fees by bank transfer and credit or debit card. A high proportion of specified money claims and employment tribunal claims are already made online.
Judges need to be prepared for future technological changes. My own view is that telephone hearings should be encouraged, so the presumption in all interlocutory hearings should be that the hearing is conducted by telephone. There could be also be more flexible working and use of IT to reduce travelling time, travel expenses and the use of the court estate. Claims are already issued by the National Business Centre, and hearings could initially be conducted by telephone by judges working from home, without the parties needing to set foot in a Court building.
It may have had a slow start, but there is no doubt that we stand on the verge of momentous change in the way in which justice is delivered.
This article represents the personal views of the author.