A law student’s perspective – Why do we need an online court?
Amy Ooi is a GDL student at BPP, Waterloo campus. She the Justice Reform Analyst for the Pro Bono Centre, specifically reporting on the new online court. Amy completed a degree in English and German and has an interest in human rights and civil liberties groups. She is also interested in current reforms to our justice system and, in particular, how technology and the law get can work together.
This is the second of Amy’s reports on how the proposed online court is taking shape.
Amy is a volunteer with the BPP Pro Bono Centre. The Pro Bono Centre facilitates around 30 projects engaging law students to deliver legal education and advice projects to improve access to justice. To find our more, email firstname.lastname@example.org.
Why do we need an online court?
How the idea developed and who thought it first
Though alive in the sphere of science fiction for a while now, the idea that our technological creations will play a vital role in the justice system first emerged as a reform proposal in February 2015 in the report Online Dispute Resolution for Low Value Civil Claims (the ODR report, published by the ODR advisory group to the Civil Justice Council).
The idea here is to use IT in the civil justice system in a totally new way – rather than adding it into existing structures the advisory group propose to start from scratch and build a three-stage online system that uses technology to resolve disputes.
In April 2015 the JUSTICE Report was released (Delivering Justice in an Age of Austerity). It came out against a background funding cuts in the justice system and thought creatively about how systemic reform can ensure that citizens can still enforce their rights and defend themselves from claims against them. The report endorses the online court proposed in the ODR Report, especially as a way of creating a court that is accessible for unrepresented parties (litigants in person, or LiPs).
All this was taken up by Lord Justice Briggs and his review team in January 2016 when he produced a report written during his review of the civil courts structure. He was tasked with investigating how the civil courts currently function and how they can be improved as part of the HMCTS Reform Programme. The five-year Reform Programme – commenced in 2015 and set to cost £700 million – is centred around modernising the civil and criminal courts system to be more efficient and accessible. There are three main branches to this on the civil side of things: (1) better use of IT and technology (2) reassessing how HMCTS uses its buildings and court spaces in the light of possible technological reform (3) redistributing judges’ workload. Importantly, parts 1 and 2 involve freeing the court system of its reliance on paper. Briggs LJ’s review was conducted on the basis that the future of the courts is a “brave new paperless world”, and he produced no paper in the making of it. 
In this mid-review report (the Interim Report), Briggs LJ considers how judges carry out their work, solidifies the idea of non-judicial case management roles – aka Case Officers –, he looks at possible court mergers, and how to manage the backlog of non-urgent cases in the Court of Appeal. Most importantly for our purposes, he also pulls together ideas about the Online Court (OC) and how it can be piloted to deal with civil claims valued under £25,000.
The final report was published in January 2016. By this point Briggs LJ has concluded his review into the civil court – funding for the Reform Programme has been flowing since April 2016, the Ministry of Justice has agreed to implement OC, and legislation for the new court is in the course of being drafted. Detailed design and development are now in progress.
Why now? Problems in the justice system
Though JUSTICE make clear from the very beginning that “nothing in this report should be interpreted as support for the programme of cuts to legal aid and broader cuts within the justice system,”  their recommendations presume that the “age of austerity” will not be over any time soon. Briggs LJ too proceeds on the basis that cuts have occurred and cautions us against expecting any reversals.
The reality is that the civil court system is less and less able to resolve legal disputes quickly enough, or at a reasonable cost.
One way in which access to justice is currently at risk is because of how expensive legal proceedings actually are, especially in relation to the value of the claim itself. Though it has always been the case that there are small claims where it doesn’t make sense to obtain full legal representation because the claim itself is not worth the cost, the issue here is that this disproportion between legal costs and value at risk is no longer confined to the small claims track. This is for a number of reasons. Despite some reform within the legal profession, costs for legal representation and advice can often be quite open-ended. Increased fees charged to start civil legal proceedings have done little to help this, and neither have Employment Tribunal fee hikes (though a case challenging the employment fee increases has just been heard in the Supreme Court).
The fact that “the Line” (below which it costs are disproportionate to the claim value) is now thought to be well above the small claims limits means that many people are discouraged from enforcing their civil rights, even if they might have a good claim. One Citizens Advice study showed that 71% of their clients would think twice before even contemplating litigation. This is not good news for the vindication of our rights.
And then of course there are the legal aid cuts, which have radically altered access to legal advice and representation. For Briggs LJ, “the single most pervasive and intractable weakness of our civil courts is that they simply do not provide reasonable access to justice for any but the most wealthy of individuals, for that tiny minority still in receipt of Legal Aid, for those [able to obtain no win no fee agreements], for the few who obtain free advice and representation, and for substantial business entities.”
Cuts to legal aid, local authority funding of legal advice and support, and HMCTs reduced court staff and counter hours have fed into an advice deficit. This in turn has led to the rise of the LiP as parties are increasingly unrepresented during legal proceedings. The main issue here is that LiPs are attempting to navigate a courts system that was never designed for those without legal representation. There are forms, jargon, and an increasingly complex civil legal landscape.
Encouragingly, though, steps are been taken to make the process more intelligible to ordinary unrepresented court users. The Law for Life Foundation for Public Legal Education, for example, has helpful information for people taking their cases forward without representation, and CourtNav is an online tool to guide users through the process of divorce petitions. But measures like these are a stopgap for the institutional disadvantage you face when you go to court without representation.
The failure of the civil courts system to make proper provision for LiPs hurts everyone. Not only is the progression of a potentially good claim hampered, but LiP claims are more difficult and time consuming for judges to process, because they are often lacking pieces of evidence, or are improperly formulated. This does little to help the judicial backlog issue also being tackled by the Reform Programme, where work over spilled to the point where there is a backlog of 50,000 hours in the Court of Appeal. 
And this is where the OC comes in. The main thing is that it will not require users to have legal advice or representation. The online system will guide you to classify your claim so that you understand your rights and obligations, and will have you upload all the relevant evidence without recourse to expensive legal representation. The idea of a court entirely without lawyers has been a controversial proposition among the profession, though, (more on this later), and is part of a bigger conversation about how solicitors and barristers can and should adapt as the justice landscape undergoes change.
The OC will also be concerned much more with dispute resolution than the current civil system. Alternative Dispute Resolution (ADR) has been surfacing in the courts in recent years, usually in the form of small claims mediation or conciliation efforts. These methods can be effective in finding room for compromise between parties before too much money and time has been spent on preparing for proceedings in the traditional adversarial format.
In the Early Neutral Evaluation scheme in the Social Security and Child Support Tribunals (piloted in 2007-9) fewer cases proceeded to hearings as the Department of Work and Pensions either reconsidered their decision or it was better explained to the claimants why their claims had been rejected.
Online Dispute Resolution (ODR) makes up the crucial second stage of the OC, where technology along with expert Case Officers (human) try to find scope for compromise and overlap in intention between the parties exhaustively before involving a judge.
This adds into the last point – that matters which can be solved without a trial are resolved earlier on. This will help to ensure that (relatively expensive) judge working hours can be diverted to the more complex matters of fact and law, helping to ease the backlog, and saving the court system money.
And why now? Despite austere times the success in restructuring the Family Courts, Tribunals and Chancery Division has bolstered support for the rest of the courts. As a result of the large scale government funding for the Reform Programme, the opportunity to design a court experience on the basis of new technological possibilities rather than applying “new wine into old bottles”  measures with the current IT systems is greater than ever. The time to forge on with the OC is now since computer literacy and the sophistication of online services makes “an OC designed for LiPs a practicable proposition for the first time”. 
 The Interim Report, 1.15
 The Justice Report, 1.6
 The Interim Report, 5.23
 The Final Report, 2.9
 Deputy Chief Justice Faulks quoted in The Justice Report, 1.8
 The Interim Report, 1.21
 The Interim Report, 1.18.4