Digital dreams

When I undertake a heavy detailed assessment (a working definition of which is more than 2 days or more than 2 boxes of documents to read) there are three indispensable things I require in order to function efficiently. The first is good coffee. The second is a bacon sandwich. The third is “Old Faithful”. Here is a picture of “Old Faithful”.

Old Faithful Old Faithful (and its predecessor now retired due to metal fatigue) demonstrate the falsity of the lie I was told some 25 years ago, when considering a career at the Bar, namely that although earnings could vary dramatically, at least it was “an inside job, without heavy lifting”. Old Faithful enables boxes, files and piles of paper to be transported efficiently and without strain, from car to court.

The reason of course that Old Faithful exists, is because despite being able to type this post on a computer in my study, or my room in chambers, or on the train, and upload it remotely, so that you can read it anywhere in the world, the Digital Age has not yet reached the civil courts.

We exist in a paper based system, and so for the assessment of costs, the papers have to be lodged at court and copies transported there in case the costs judge wishes to read them.

There seems no imminent change likely: recently a District Judge in the County Court at Slough, wrote to the Times rebutting the notion that he was about to lose his judicial lavatory, by pointing out that he had never had one, did not have a retiring room, worked in a building with a leaking roof, and also pointed out that in terms of IT, his building did not have Wifi and the computers ran on Windows XP.

It is accordingly against this backdrop, that one considers the Briggs report, a copy of which can be found here: The Civil Courts Structure Review Interim Report. This document repays careful reading, not least because of the speculation that the author’s hat is in the ring to become the next Master of the Rolls.

The report also, though not directly concerned with the law and practice of costs, will certainly impact upon it as recognised in the text and ones notes the language used when discussing the former Access to Justice Act 1999 with its scheme of recoverable liabilities:

3.3. It is no criticism of what are generally called the Jackson Reforms that they were, and their implementation has been, primarily directed to curing very serious abuses and disproportionality in the cost of conducting personal injuries litigation.

3.4. Certain recommendations made by Jackson LJ have not been implemented. In particular, fixed costs have yet to be applied to parts of the fast track or considered for application above the fast track, although there is now a proposal from the Department of Health that a fixed costs regime should be implemented for all clinical negligence cases where the claim does not exceed £250,000. There is growing pressure for an upwards extension of a fixed costs regime across the whole of civil litigation. It is important to my analysis because, although costs reforms are not part of my terms of reference, their availability as an adjunct or an alternative to structural change is material when considering how to address the formidable barriers to access to civil justice still represented by the costs likely to be both incurred and risked by the average litigant.

It also ominously contemplates further costs reforms as an alternative to structural change: in effect implying that if the report’s vision for digitisation of the courts does not come to pass something must be done, in order to further reduce costs.

The report is not directly concerned with the HMCTS reform programme including IT, but describes what is happening in these terms:

4.10. As is reflected in the second of the Reform principles (see paragraph 1.8) the ambition of HMCTS is to digitise the whole of the processes of the courts, including the civil courts, within four years from now, subject to funding and technical constraints. That can be (and is intended to be) achieved in two broad ways. The first, less ambitious, way is simply to replicate in digital form the current processes of the courts, so that the digital process is as near an approximation to the current paper or other physical process as can be achieved, thereby minimising changes in practice and procedure, including procedure rules. Thus for example, where an order of the court currently exists primarily in a physical form, as an original and one or more sealed paper copies, it will in future exist primarily as an electronic document, but be capable of being copied onto paper where necessary, for example where it has to be served on a person without facilities for receiving electronic documents.

4.11. The second, more ambitious, method is to make use of IT for new or different processes and procedures which are not capable of being carried out on paper. Thus for example, modern IT would enable court users to issue a claim without the assistance of lawyers by accessing online software, pre-designed to elicit the relevant information, evidence and documents necessary to enable the court to determine the claim, by an interactive process of question and answer, where each new question or set of questions is responsive to answers input by the user. This is the sort of IT contemplated for use in Tier One of the HM Online Court (“HMOC”) model described in the report to the Civil Justice Council and to the Master of the Rolls entitled “Online Dispute Resolution for Low Value Civil Claims” by the Online Dispute Resolution Advisory Group in February 2015. I will refer to it as “the ODR Report”. The same tiered structure was also adopted in the report by JUSTICE later in 2015 entitled “Delivering Justice in an Age of Austerity (“the Justice Report”). Both reports noted the precedents set Civil Courts Structure Review: Interim Report The HMCTS Reform Programme 43 for an online court or tribunal of broadly this kind already in use for family and consumer disputes in the Netherlands, and about to be deployed for small claims in British Columbia.

4.12. Digital innovation of this second kind would enable the creation of wholly new processes for the resolution of civil disputes. The current thinking of the HMCTS design team is that a new type of civil court (currently labelled the Online Court, or “OC”) could be created for the resolution of relatively straightforward debt and damages claims up to a provisionally chosen value at risk of £25,000. As will appear, the OC would achieve its purposes as far as possible by automated software, both for initial triage and basic conciliation, but disputes not thereby resolved would receive human attention both from Case Officers (previously labelled DJOs) and, for final determination, from judges.

4.13. This wholly new concept of an Online Court takes its lead from the ODR Report and from the Justice Report, but it is significantly different from both. I shall have a great deal more to say about it in due course but, for present purposes, it is sufficient to say that it is a concept which is wholly dependent on the introduction and imaginative use of IT, as well as upon behavioural and cultural change, both of which are principal aims of the Reform Programme, and would be impossible without them.

4.14. Running in parallel with these two different modes of digitisation is the development of “Assisted Digital” provision. Recognising that there is a substantial section of civil court users who would find it difficult or even impossible to conduct civil litigation through computers, it is being designed to ensure that they thereby suffer no impairment in their access to justice by the proposed digitisation of courts, by providing them with the requisite assistance. Forms of assistance currently being considered include online help, telephone help-lines and face to face human help.

Reading these proposals, reading the HMCTS reform programme, and noting the departure this month of its Chief Executive, who in a speech last year airily noted the possibility of a boundary dispute between neighbours over leylandii trees being just the sort of case, that could be resolved through evidence given over Iphones, without the need to go to court (yes, really, the speech is still on the web), one cannot help but feel sceptical as to how much of this is likely to come to pass.

The impediments as I see them to a digital future are threefold. The first is the money. Although £750 million has been promised, digging a little deeper, this assumes that £300 million is raised from selling off court buildings. A dip in the property market, may yet derail the whole project.

Secondly, what seems astonishing is the lack of emphasis on IT security: there is very little detail to be gleaned in any of the publically available documents as to how the government will protect the system from an attack from North Korea, or more prosaically, stop copies of all the data on it flowing to the USA under the Patriot Act. Devotees of the early 1980s flick, Wargames and the reimagined Battlestar Galactica, will readily note the vulnerability of networked computers.

Thirdly, there is a fundamental issue here, which is not to be glossed over: access to justice, includes as a necessary element, the public administration of justice. Anyone can walk into a Crown or County Court and see a public hearing, or report it in the press. How is that to be achieved when matters are dealt with digitally in cyberspace?

So at the moment, I remain dubious as to how the digitisation of the courts will proceed. But it is badly needed.

I wonder if there is scope for an alternative vision. Perhaps reform might start to take place, from the bottom up, and using off the shelf solutions. There seems no reason, why in this respect the profession cannot move forward, without having to wait for the courts. It doesn’t have to cost millions either.

More and more solicitors and barristers are moving to paperless working, irrespective of what the courts are up to. I can give a couple of examples from my own use of IT as to how it doesn’t have to cost a lot and actually saves me money.

Some years ago, when contemplating setting up this website, I was quoted £6000 plus VAT by a company to design and build it. Instead, using free WordPress software, each year I pay £6.99 for the website name and £49.99 for hosting services.

I often work remotely, receiving papers, and sending off documents by email, in itself an anachronism, to be replaced by secure document drop services. It is now a couple of years since I have signed paper Advices, and fondly sent them off with the DX. It means that I can be working without leaving my home or incurring wasted time travelling to and from chambers.

What I would like to see as the next logical step in costs work, is those boxes of photocopied paper, reduced to scanned images, catalogued, searchable and provided to me on a flash drive.

I would like to see the documents routinely loaded onto a £300 laptop, which is then lodged at court, so the costs judge can read them or be able to access them during the course of an assessment.

Then Old Faithful can be retired, and I can indeed have an indoor job, without heavy lifting. And I suspect that the detailed assessment would be shorter and cheaper too.

 

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