3.1.1 Online court
In July 2016, Lord Justice Briggs produced a review of the civil courts structure, which set out the rationale for an online court (Briggs, 2016). The litigant in person will be at the forefront of the design and it will be an interactive process to allow the formulation of the claim and the ability to upload evidence in support. Lord Briggs argues that it is a unique opportunity to:
design from scratch and build from its foundations a wholly new court for the specific purpose of enabling individuals and small businesses to vindicate their civil rights in a range of small and moderate cases … without recourse to lawyers, or with such minimal recourse that their services can sensibly be afforded.
Lord Briggs also states that the online court should be created ‘as a separate court, with dedicated software, staff, rules [designed from the outset to be understood by litigants without lawyers] and rule-making body’ (Briggs, 2015, para. 6.29). The Prisons and Courts Bill which was introduced in April 2017 sets out the framework of the online court but left the detail to be developed. There will be a new online rules committee and simplified procedure rules. The Bill was abandoned because it could not complete its passage through both Houses, before Parliament was dissolved for the general election on 9 June 2017. Following the election, the Queen’s Speech announced the Courts Bill, which aims to reform the court system in England and Wales. It seems likely this Bill will introduce the legislation to bring about the online court.
Lord Briggs recommends that the online court should start with hearing specified money claims up to £10,000 and that should gradually increase to cases valued up to £25,000. Unspecified money claims, for example personal injury, professional negligence cases, and non-monetary claims such as injunctions, specific performance and possession of homes would be excluded. The recoverable costs regime will be the same as used in the(fixed costs only). In addition there will be a fixed-cost payment for advice at the start to determine the merits of a case. It is not intended that lawyers will be excluded from the online court but limiting it to fixed recoverable costs may determine the role of lawyers in the process. Lord Briggs discusses the role law students can play to help users navigate the technology.
Cases will be resolved in different ways depending on the circumstances; face-to-face hearings will be available but decisions predominately will be made via video or telephone. Judges will be responsible for deciding cases, although in some cases there may also be the option of online dispute resolution where the parties resolve their case online without human interaction. As part of the online court there should be an ‘Assisted Digital Service’ which should be publicly funded to provide technical help and support to users.
The removal of legal aid for many civil cases has led to the increase of litigants in person and has had a negative impact on access to justice. A system designed to be used without the requirement of a lawyer should make the process easier to navigate and encourage greater accessibility. Sir Terence Etherton, Master of the Rolls, said the court’s success ‘will not just be measured by improving the quality of access for those using the system, but by giving effective access to those who do not currently issue claims’ (Etherton, 2016, para. 9).
It will take a number of years to develop the online court and it will be launched in stages to ensure the developers can test each part of the process properly. If successful, the online court will be transformative. There are concerns, particularly around the IT requirements for the project. Elements of an online court already exist in British Columbia in Canada, but England and Wales are leading the way with the scale of what is proposed.