The setting up of an online court for deciding disputes up to £25,000 has been recommended and is finding much favour with the government – if not with lawyers. The proposal follows the recommendation of the much heralded legal ‘futurologist’ Professor Richard Susskind and has been jumped upon as a clear and urgent need in an interim report by Lord Justice Briggs on the restructuring of the courts.
The idea behind online courts is to give litigants access to a judge who will decide their dispute without the need for them to incur the cost of employing a lawyer. In so doing the court process will be simplified. If Professor Susskind’s suggestions are carried through there will be a 3 stage procedure.
The first stage will be to identify the issues in dispute which will be largely automated. The next stage will then be conciliation and attempts to resolve the issues with negotiation and mediation. If this fails a judge will decide the issues without the need for attendance at court by the parties.
These proposals are a radical departure from the adversarial system which has dominated UK Law for centuries. Under this the parties to a dispute have traditionally employed lawyers who argue their client’s case before a judge who will then decide which argument he prefers. With the high cost of lawyers and withdrawal of most public funding this system is beginning to break down. Although a level playing ground is one of the objectives of the courts, this is not always practical. An inexperienced litigant with no money to employ a lawyer cannot be expected to present their case as persuasively as a represented opponent.
Under the adversarial system it is not for the judge to carry out an investigation (other than perhaps in small claims). They can only decide matters on the evidence presented to them.
An online court will mean many changes. A judge will have to adopt an investigative role. He will not have a lawyer before him to identify the issues and set out the law. In many ways he will be the parties own lawyer. Funding to train judges if they are required to adopt this new role will be needed which has been lacking in the past. The changes will not however do away with the need for parties to be able to access good and affordable legal advice.
Clearly an online court is unsuited to certain matters. Applications for injunctions, some family matters and cases requiring penal measures are but some. What about matters such as employment claims which are now dealt with by a tribunal rather than a court? Should there be a right to appeal and on what basis? And what about the computer illiterate and those unable to cope with technology.
Despite the difficulties there are many arguments in favour of an online court. The success however will depend not only on persuading the established legal community that changes are inevitable. The setting up is going to need proper funding. It has to be seen as more than a substitute for legal aid or enforced mediation. Unfortunately, the governments record of funding the court service has not been good.
A prime requirement will be a functioning, user friendly and intuitional IT system. The failures of HMCTS to implement one in the past have been spectacular with many millions wasted on abandoned projects and software. Existing judges will need retraining. The likely increased work load will call for recruitment to the already overstretched judiciary. Talent from the legal professions much be properly remunerated if they are to man the court. It can and is likely to be the future but must be properly handled.
You can read Lord Justice Briggs Interim report on the proposed new Court structure.