Going Online: the debate continues

01 Mar 2016 | 5 min read

edisclosureLord Justice Briggs has published his Interim Report on the Civil Courts Structure Review which was commissioned by the Lord Chief Justice and the Master of the Rolls in July 2015. Michelle Di Gioia, Partner in the Dispute Resolution team at Gardner Leader solicitors gives her view.

The turn of the year has seen more developments in an ever-changing debate regarding the make-up of our civil justice system. Lord Justice Briggs has outlined plans for the introduction of an ‘Online Court’ (OC) in his Civil Court Structure Review (the Review). The interim report’s headline feature is the proposal of a start to finish digitalised court system designed solely for litigants in person, therefore removing the need for legal representation.

The Proposal

The role of the OC would be to oversee relatively simple and modest value disputes, dealing with claims valued up to £25,000. There are three stages:

Firstly a litigant issues a claim through an automated system, identifying their case and uploading the necessary documents. From the outset, an electronic file is available to the parties and court.

Then a Case Officer will assist the parties in case management, ideally online or by telephone as well as an active view towards conciliation, building upon the Small Claims Mediation Service.

The assumption of a traditional trial would be abandoned in favour of establishing whether a verdict on the documents or a hearing conducted on the telephone or by video link could first be achieved.

Impact

The proposal has potentially wide reaching consequences with approximately 70% of all current cases valued up to £25,000, although the Review recognises the limitations of an OC in complex litigation.

The software envisaged for Stage 1 for instance, would enable a litigant to create their own particulars of claim by guiding the individual through a tick box system designed to eke out the fundamental elements of the case.

The Review uses a building dispute by way of example, whereby once the box labelled ‘Builder’ is ticked, new questions are given to establish the nature of the issue, whether it be the quality of the work, the amount charged or late completion, etc. Further questions are then presented based on this answer.

The simplicity of this example gives an indication as to the type/nature of cases that an OC may be suited for. However using a monetary value to gauge its remit is problematic, simply on the basis that the monetary value of a claim is no definitive gauge on how complicated a matter is. With a claim as large as £25,000, an individual may want to seek specialist advice to ensure their interest is protected.

Regardless of value, individuals may need advice on the legal aspects and/or merits of their claim. The Law Society argues that many will continue to need assistance with navigating through the court process, whether online or otherwise.

The Broader Context

The proposal to introduce the OC must be viewed in the context of a justice system that has seen the recent closure of 91 courts and tribunals, the virtual eradication of civil legal aid and parties losing the ability to recover success fees and ATE insurance premiums.

The extent in which an OC represents a modern development designed to off-set these issues is debateable.

For instance, an OC could mitigate the damaging effects of the massive hike in civil court fees in March 2015 which saw claims with a value of between £10,000 and £200,000 incurring a court fee of 5% of the amount claimed.

It may be that, by not instructing lawyers, small and medium-sized enterprises (SMEs) more readily opt to chase matters such as pursuing outstanding invoices.

The prohibitive court fee would be mitigated by the introduction of an OC and a save in legal costs, perhaps even leading to SMEs widening their net further, and chasing smaller debts without the need to outsource to a traditional legal service provider.

A note of caution however for those litigants in person who can’t afford legal representation. In January 2016, the Commons Justice Committee reported on the effect of legal aid cuts and found there is a proportion of people who ‘struggle to effectively present their case’, attributing this to factors such as inarticulacy, poor education and lack of confidence.

Lord Justice Briggs envisages the OC ‘as a separate court, with dedicated software, staff, rules [designed from the outset to be understood by litigants without lawyers] and rule-making body’.

As a concept very much in its infancy, it remains to be seen whether an OC is just an innovative idea or whether it could achieve its aims of providing real access to justice to those in need of it.

Further guidance

Our free content sent to subscribers this month was our Lexis®PSL Dispute Resolution analysis of the Briggs Report, which considered the creation of an online court, rights and routes of appeal, case officers, enforcement, the creation of a unified court and regional courts.

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Michelle Di Gioia is a Partner at Gardner Leader in the Dispute Resolution team. She specialises in all aspects of commercial dispute resolution from contractual disputes, professional negligence, partnership/shareholder disputes and arbitration.

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