Our system needs to be accessible – easy to use, but digital in design.
Today’s court system has been built around a physical paradigm. We spend a third of the court and tribunal service budget on running and maintaining our buildings. And last year, over a third of courts sat for less than 50% of the time available to them. But for many of our services, that physical paradigm no longer feels like the right answer, not just because it’s expensive, but because it is no longer the right answer for good justice. Britain has the highest rate of online service usage in the world – over one quarter of all non-food goods are now purchased online and 85% of Britons are online. We need to enable a police officer give evidence by video, taking 10 mins of time off their working day, rather than the current half day. We need to stop running prison vans to transport prisoners to and from prisons for a 10 minute plea hearing which can be done online. And we need to, as Brian Leveson recommended in his superb review, limit what happens in the criminal court room to just trials and complex sentencing.
And in our civil courts, as both the Justice and Susskind Reports recommend, we need to learn from the ombudsman model, whereby huge numbers of relatively low value or low stakes cases are resolved simply, quickly and cheaply by avoiding hearings all together. For a dispute between neighbours about the height of a leylandii 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. And, for our family courts, we need to make it as straightforward to claim uncontested probate as to submit a tax return or renew your annual car tax.
-Natalie Ceeney’s keynote speech on modernising courts and tribunals from the Criminal Justice Management conference. September 2015
As the pandemic takes hold, I have been struck by how nearly 5 years on from this speech, by Natalie Ceeney, how little has been done to make the civil courts “digital in design”. At the current time, face to face hearings are impossible, and the telephone conferencing facilities of the courts have been overwhelmed by the sheer number of cases that are seeking a remote hearing.
Yet there exists in the modern workplace tools such as StarLeaf, Zoom, Gotomeetings, Teams, Skype etc which would permit remote video conferencing to take place which would be adequate to deal with all interim hearings, and I believe Small Claims and Fast Track cases too: although much is made of how to connect witnesses etc remotely, the point is that all of these apps will work on smartphones. And the British people do love their phones.
But the technology is not there, or the judges are not trained, and the workplace is not digital by design. Yet these things are cheap. For scarcely more than tuppence ha’penny as a proportion of public expenditure, it would be possible to end this nonsense whereby people have to travel in the early morning and overcrowded trains, to get to court for a costly face to face meeting that could be done remotely.
It may well be, that things will change significantly, as the crisis abates. But for the moment there seems little to be done.
Accordingly to read a publication such as Practico Beyond the electronic bill is a breath of fresh air at the current time. It is a 32 page document written by the well known costs firm, and published as a “white paper”. Meant to inform and also provoke debate. I enjoyed reading it as it looks forward to a “digital by design” future and with streamlined processes for the resolution of costs disputes. Thus this is not technology for technology’s sake, and not in isolation from reform and reduction of the costs process.
A few snippets will put its proposals in context:
It is clear that innovation should not stop here. Making the electronic bill mandatory was intended to be a means to an end rather than the end itself. Key people within the world of litigation are now looking at how to develop the process further. There is much which can – and arguably should – be done to make detailed assessment more efficient and better informed by the more insightful presentational options now available. Practico managing director Andy Ellis suggests “We may end up with a more fundamental change to how detailed assessments are conducted, especially in the larger cases. “Once bills are over £1m and sometimes less, the benefits of resolving micro-points by attrition are quickly overtaken by the ‘costs of the costs.’ Something has to give, and it usually does. Hence it would be helpful to develop and record best practice and reflect that in procedure as experience grows,” Ellis adds.
At present, the electronic bill is heavy on data and numbers, but Ellis believes that parties could start expanding on this in the future. “If I had a crystal ball, I’d say the use of graphical and modern data visualisation to go alongside the numbers is where we’re going to end up as best practice. We’re very interested in data visualisation as a discipline but that’s a slow burner,” he says, suggesting that this is likely to appear sparingly and only in the larger cases initially. “We’ve got a wide-open mandate; we’ve got to be bold and experiment with different forms of presentation,” he adds. Practico, and the costs lawyers interviewed for this piece, are not concerned that the electronic bill is going to take their roles away; the need for continued human input will certainly remain. “It’s making the labour-intensive part of the process more efficient,” Ellis says. “It’s not making what we do redundant, it’s just improving the quality of what we do.”
One of the areas of that I will be looking at in 2020, is digital innovation.
Because what the current problems have emphasised, is that “digital by design” resolution whatever it costs, is likely to save a huge amount of money compared with the analogue approach, whose obsolescence is now revealed.