The Future of the Courts
On the 14th October 2015, Westminster Legal Policy Forum held a seminar on the future of the courts, the second part to which focused on access to justice and the role of technology. Below are some short notes of the proceedings. I have not included all speakers but just some of the comments that I found of particular interest and relevance to the role of technology in a modernised justice system.
Professor Richard Susskind, IT Advisor to the Lord Chief Justice and Chair of the ODR (Online Dispute Resolution) Advisory Group of the Civil Justice Council (which I have the pleasure to sit on), led the way with the keynote speech. Richard opened with the claim, quickly gathering support and acknowledgment from on high, that our court system is simply not fit for purpose. It is too costly, too slow, too unintelligible to the public, too combative and, generally, out of step in the internet society.
The first change that is needed is to broaden the purpose and scope of a court system. Hitherto it has simply been about dispute resolution. A modern justice system, however, should have facilities to help the public better avoid and contain disputes not just resolve them. Technology has brought such a vision far more within our grasp than hitherto. These points were very much at the heart of the ODR Advisory Group Report recommending the creation of HM Online Court. which Richard went on to explain and the details of which can be linked to in an earlier blog of mine.
Mark Beer, Chief Executive and Registrar of the Dubai International and Financial Centre Courts described how in Dubai they have developed "one of the most efficient court systems in the world" with online filings and case access. Mark argued that settlement rates are much higher in courts that have higher quality of customer service. They settle, within four weeks, 95% of all claims under £85,000 in value. What was not made clear was whether the technology is used to help resolve disputes or just manage online the progress of the cases.
Andrea Coomber, Director of JUSTICE, referred to the growth in unrepresented litigants. "The reality is that most ordinary people of modest means, have long ago been alienated from the civil justice system. They can’t afford a lawyer, and they can’t qualify for legal aid." The court system is predicated on all parties being represented. This is no longer the case. This has led to growing problems with unrepresented litigants but Andrea said her main concern was more for those who, deterred by the cost and knowledge barriers, do not engage with the justice system at all. Andrea talked about the Justice Report "Delivering Justice In An Age of Austerity".
Andrea agreed with a point I made that better delivery of , and encouragement towards, ADR (Alternative Dispute Resolution) was one of the chief benefits of ODR for a court system. Andrea argued that ADR should develop so that it is no longer seen as an alternative to court resolution but a part of the justice system itself.
Theodore Huckle QC, Counsel-General for Wales, said that the justice system in Wales was widening with the growth in tribunals, such as for disputes over education and for the protection of the Welsh language. Law in Wales is developing a separate path since devolution and any reform of the UK courts should allow for this fact. Current court closures will make the reduction in access to justice an even greater problem in Wales because of its topography and distance between towns. Of course, Theodore recognised that technology can help resolve such a problem, although he pointed out the need to ensure that you do not create new barriers for the less technically skilled.
Natalie Ceeney , Chief Executive of Her Majestys Court and Tribunal Service, answered concerns some had expressed that the move to embrace technology was being driven by a simple wish to cut cost. Natalie argued that the driver is not to cut costs but to give a better justice system, which, in turn, by being more efficent will, in fact, cut costs. She said that there was a real appetite for change from Ministers downwards (see my blog on the speech of the Secretary of State for Justice).
Natalie summed up the current problems with "Our systems across our courts and tribunals service are still dependant on paper and large elements of our work remain manual, or done on green‐on‐black IT, requiring our newly hired graduates to learn, for the first time, how to use an IT system without a mouse or a browser." Natalie looked to the future and the desire now within the HMCTS to make changes so as to build a system around the people who use it, i.e the public, not just the lawyers. We need to avoid the excessive cost in unnecessary court hearings. "For a dispute between neighbours about the height of a Leilandi tree boundary, iPhone evidence and a video hearing may prove far more effective than the parties appearing in a court miles from the site in question."
The desire to exploit technology in a way that will improve access to justice for all now seems to be gaining ground. We can, perhaps, finally move away from a situation in which the courts are 'open to all like the Ritz hotel' (as the famous quote over a hundred years ago from the Irish judge Sir James Matthews ) but perhaps as open as a Travelodge. Watch this space!