Posted on 25th August 2015
In February 2015, the Civil Justice Council issued a report on Online Dispute Resolution for low value civil claims.
If implemented this would amount to a revolution in the UK civil justice system. Paperless claims would be dealt with on-line, just like e-bay disputes, by on-line judges. No need to traipse to horrid court rooms to be cross examined by clever barristers.
I would like to offer a little caution before we all get too excited. I accept that there is huge pressure to cut the cost of civil justice and that IT, paperless process and on-line systems have a huge amount to offer the justice system.
The Government’s record, however, on investment in IT and the courts is beyond a joke. No progress has been made in the last 15 years on an IT interface for the public and the courts. Pilots and projects have been started and abandoned – countless times. So, the idea that Government can design and implement an on-line justice system for smaller cases is absurdly ambitious and almost doomed to fail.
This is a Government that likes to cut and close courts and libraries, not create new super IT systems.
There are major practical problems about access, documents and witnesses. Significant sections of the public have no access to the internet and a computer because, they are too poor or mentally unwell or, too old or too young or, they are illiterate or speak and write little or no English or, lack IT skills.
On-line justice can never work for them so the system will have to allow them a more conventional system, otherwise they will be excluded altogether, which is not acceptable.
On-line process may not work where the evidence is such that a judge needs to see and hear the witness to decide whose evidence to prefer or who is lying. It remains to be seen whether video links can address this properly.
How to manage documents? Most litigants will be acting for themselves in smaller cases and litigants in person do not tend to disclose documents in advance but bring them to the hearing. You can’t properly show a witness an original document by showing it to a camera.
We are currently closing courts all-round the country in the latest round of cost savings but the new system will need many video court rooms. Where will they be? Some say in libraries but, they are being closed too!
Something has to happen to improve the current system which has been damaged by cuts which are happening simultaneously with huge court fee rises. Some fees went up by 1000% in March 2015, ostensibly to ensure that litigants pay for the full cost of the service, but what service? Long waiting lists, closed courts, closed counters, no IT.
So a cautious welcome to some audacious and innovative ideas but, huge caution about the pitfalls that are in the way of putting it into practice. Civil justice is not a luxury that can be dispensed with. It comes at a cost and tax payers will always have to meet that cost as a price for a functioning democratic state.