E-Justice: Reaching Out or Out of Reach?

England and Wales could experience one of the biggest shake-ups to the judicial system if a radical proposal to digitise civil justice services gets adopted. Is the move a step towards expanding access to justice or a potential setback, The Nerdy Reporter tries to find out.

Photograph courtesy of:  Evlakhov Valeriy/ Shutterstock Images

All the civil court cases involving claims up to £25,000 would be settled online if the proposal gets implemented. The parties won’t be required to appear in the court in person as the judges would rule on the cases in a virtual courtroom.

The report’s principal author, Prof Richard Susskind, has dubbed the scheme “remarkable” adding that it could ease the burden on hard-pressed courts which he noted, are “too costly, too complex and too slow”.

“Our civil justice system is creaking,” said Lord Dyson, chairman of the Civil Justice Council, in the foreword of the report.

“I see this as an exciting milestone in the history of our civil justice system” added the second-most senior judge in the country.

The initiative would be known as Her Majesty’s Online Court.

The proposed shake-up would save large sums for the Ministry of Justice (MoJ), the paper adds. The legal system has suffered a budget cut of 27 per cent between 2010 and 2015 which amounts to £2.7bn a year. It might be slashed down further by 10 per cent in the next financial year.

Under the proposal, a three-tier system would be adopted.  At the initial level, parties would be given a limited period to reach a settlement online. The second tier offers online negotiation with a legally qualified “facilitator”. And only failing that will a judge decide or review the case based upon previously submitted documents.

70 per cent of UK civil court hearings are for small sums under £25,000, said Susskind in his report. “If a large number of disputes come to be resolved by HMOC, this would have significant implications for the court estate.

“There will be a reduction in need for many of the current buildings and the land on which they sit,” added the IT advisor to the Lord Chief Justice.

The report suggests that the proposal could be funded using a “fraction” of the £75m annual budget of the Ministry of Justice, allocated to modernise courts over the next five years. It also urges to conduct a pilot before rolling out the scheme in 2017.

The proposal has been backed by several senior judges.

However, The Law Society, a body that represents solicitors, raised fears that the courts may not have robust enough IT systems to handle such large numbers of cases sufficiently.

“I wouldn’t be keen on the higher value cases of up to £25,000 being dealt with online. There should be a lower boundary for online cases such as £1,000 or maybe up to £5,000,” said Solicitor Martin Salisbury.

Several issues remain unresolved, including whether there would be online court listings and public access to proceedings as exists in traditional civil courts.

According to the Office for National Statistics (ONS) 2014 report, more than half the population aged 65 and over in the UK doesn’t know how to use a computer.

In all, 16% adults in the UK had no access to the internet in 2014, reveals the report.

In such a case, getting court forms and leaflets online, contacting online facilitators etc. might be cumbersome for people who are not comfortable with using technology.

This underlines the need to critically evaluate the accessibility and utility of the initiative.

Alternatively, there should be “a dual system to allow those unable or unwilling to use online services to opt for a court hearing,” suggests Salisbury, who is also a senior lecturer in law at the University of Central Lancashire.

To support the proposed model, the council’s report highlighted a new online system launched by the Traffic Penalty Tribunal, which oversees disputes between motorists and councils in the UK. “The portal enables appellants to appeal, upload evidence and follow cases and hearings.

“Likewise, each authority has a dashboard showing current cases, enabling them to follow the progress of hearings and decisions,” the report said.

However, a glance at the UK’s history of public sector reveals numerous ambitious ICT projects that have been politically-oriented and have failed miserably. For instance, the multi-billion pound NHS IT system that was launched in 2002. The initiative was dubbed as the “worst and most expensive contracting fiascos” in the public sector history, by a Public Accounts Committee (PAC) report.

Electronic records, digital scanning, and integrated IT systems were introduced in hospitals and community care.  However, because of being fraught with technical glitches and contractual wrangling, it was effectively disbanded by the government three years ago.

 Another instance could be the £1.5bn project to computerise benefit payments at post offices in the 1990s.

The motivation behind the proposal of a major revamp of the current justice system is credible. But the gap between laudability and deliverability needs to be addressed.

 Surveys have proven that over 30% of ICT projects fail due to poor strategy and business planning. This includes the failure to understand what is going to be delivered as the final product to the end-users.

Consulting with all the parties involved, particularly the end-users thus becomes essential. Since it is the public that bears the brunt of these ambitious ventures chalked out on political drawing boards.

One of the promises being made in the online court service proposal is speed.  The NHS IT service was initially commended for the speed and efficiency of its procurement and contracting process. But the same process subsequently became the noose around the project’s neck.

Yet, there are successful models of ODR system in civil justice to look to. For instance, the Netherlands where ODR system is effectively used to resolve matrimonial issues.