This is the third assessment of an issue to be covered in a prospective analysis of current developments and likely trends in access to justice and technology.
The growth of remote courts and the digitalisation of court procedures are one of the main sources of change to the judicial and legal systems around the world during the pandemic. In the words of one of the rising judicial stars the court modernisation movement, Chief Justice Bridget Mary McCormack of Michigan, ‘“This pandemic was not the disruption any of us wanted. But it might be the disruption we needed to transform the judiciary into a more accessible, transparent, efficient and customer-friendly branch of government.” The UK LawTech Delivery Panel, effectively an arm of the UK government, supports a project, led by Richard Susskind, to bring together global experience. The current front page of its website (15 March 2021) alone contains details of developments in around 20 countries from India to Turkey.
Covid may have provided a major boost to the development of online courts because of the need to prioritise infection control. However, moves towards digitalisation were well advanced before the pandemic struck. They came from different directions – not entirely compatible with each other – whose potential contradiction continues to present difficulties in the post-Covid expansion of digital processes.
First was the proposition that technology could revolutionise the efficiency of the courts. This was the core of Richard Susskind’s argument in 2019: ‘Even in countries that claim to have the most advanced legal systems, it costs too much and takes too long to pursue civil cases, and the process is intelligible only to lawyers … Hardly anyone can afford to pursue legal action in public court systems. Significantly, the conventional court system is increasingly unaffordable for major businesses …’
Second, the benefits of this efficiency could be taken by government and the courts in savings to cost and head count. This was very much the hope of the specific reforms originally introduced in England and Wales. Her Majesty’s Courts and Tribunals Service reported in 2018: ‘By March 2023, HMCTS expects that 2.4 million cases per year will be dealt with outside physical courtrooms and will employ 5,000 fewer staff. HMCTS expects to save £265 million a year from these changes, which will come from lower administration and judicial costs, fewer physical hearings and running a smaller court estate. These savings are expected to contribute around half of the total savings the Ministry of Justice committed to in the 2015 Spending Review. Covid has thrown these estimates out of the window. But the intent was clear. The court modernisation programme was intended to provide a major way in which its sponsoring department would meet its share of austerity cuts.
Third, there is the argument that court digitalisation could increase access to justice by means other than cost reduction and ease of access. This was always a strong strain in Richard Susskind’s position: ‘Two major benefits should flow from the introduction of online courts … an increase in access to justice through a more affordable and user-friendly service, and substantial savings in costs, both for individual litigants as well for the court system.’
There is a separate argument in relation to access to justice: digital courts could facilitate digital resolution of disputes. The way forward was shown by the iconic Dutch Rechtwijzer. It provided an online process by which users, overwhelmingly in family disputes, could be guided towards an agreed settlement which was then approved by a lawyer and presented to a court. It was, thus, online assistance with dispute resolution rather than onlineresolution itself. The Rechtwijzer was developed by the Dutch Legal Aid Board and the basic idea has been taken up by other legal aid and assistance providers, notably with MyLawBC provided by Legal Aid BC. However, the idea of online pre-determination guidance on dispute resolution has been attractive to some courts. In the pre-Covid analogue world, various US courts – notably California – assume the role of providing non-partisan, party neutral assistance to self represented litigants. The court that led the way in taking up this role digitally was the Solution Explorer developed by the Civil Resolution Tribunal of British Columbia. This interposes the possibility of an initial step at settlement before the lodging of a claim: ‘Our Solution Explorer is the first step in the CRT application process. It’s free, anonymous, and confidential. The Solution Explorer asks simple questions about your dispute. It gives you free legal information and tools based on your answers. It also classifies your dispute and gives you the appropriate online application form. To apply, choose “Make a claim with the CRT” when asked what you’d like to do about your dispute.Click a dispute area below to get started! Before making a CRT claim, you should read about limitation periods and what they mean. The limitation period will be counting down while you use the Solution Explorer.’
This idea of court-provided pre-issue assistance was taken up by a committee chaired by Richard Susskind that reported in 2015:’This could be the legal world’s ‘fluoride moment’ – just as putting fluoride in the water in the 1950s radically reduced the need for dental work on tooth decay, then, similarly in law, appropriate investment in containment and avoidance should greatly reduce the number of cases coming before our courts. Prevention should be better than cure.We propose two online techniques for this purpose: online facilitation to support dispute containment; and online evaluation to support dispute avoidance.These will complement the work of online judges but will generally be invoked before judges become involved.’ Dispute avoidance was to be ‘tier one’ of a new online structure. Its function ‘will be to help users with grievances to evaluate their problems, that is, to categorize their difficulties, and understand both their entitlements and the options available to them.This will be a form of information and diagnostic service and will be available at no cost to court users. This part of [the online court] will be shared with or will work alongside the many other valuable online legal services that are currently available to help users with their legal problems. For example, systems developed by charitable bodies or provided by law firms on a pro bono basis will either sit within [the online court] or be linked to the service.The broad idea of online evaluation is that the first port of call for users should be a suite of online systems that guide users who think they may have a problem. It is expected that being better informed will frequently help users to avoid having legal problems in the first place or help them to resolve difficulties or complaints before they develop into substantial legal problems.’
This idea was taken up by Lord Briggs in his ‘Civil Courts Structure Review’: ‘‘The main feature of the proposed Online Court which sets it apart … is its stage 1 interactive triage process. It is this which (if it works) would provide a quantum leap in the navigability of the civil courts by those without lawyers on a full litigation retainer. Without it, the blank sheet (or blank screen) approach of the existing systems would leave the court as un-navigable as before.’
So, three we have it. Technology gives – like Goldilocks – three choices to policy makers in courts and government. Emphasis could be placed on overall increased efficiency for all users. Alternatively, governments could take their winnings and leave the table. Alternatively, they could invest in increasing access to justice and follow Professor Susskind’s analogy of adding fluoride to the water. The technology is neutral: the choices are political.
We wait in eager anticipation and some uncertainty as to the weight to be given to access to justice in the current reforms in England and Wales. The signs are not helpful This was the assessment of the National Audit Office: ‘HMCTS did not develop plans to evaluate the overall success of reform from the start and there was no dedicated funding or strategy to guide its approach. In early 2019, HMCTS proposed creating an evaluation plan supported by better monitoring of outcomes for different groups. It also proposed developing clearer definitions of its core objectives (‘proportionate’, ‘openness’ and ‘access to justice’) and is developing its performance measurement framework. The Ministry of Justice told us [that] It expects to produce an interim report in 2021-22, with a final evaluation report in 2024-25. The extent to which learning from this evaluation will be able to influence the implementation of the reform portfolio is unclear.’
The absence of goals for access to justice is likely to be critical. Just imagine how Amazon or IKEA might tackle the problem. I know of someone who was given the problem of designing a lightbulb that could retail for a profit at 99p. You would begin with your price point (let us say £10 in GBP). You would estimate numbers (forming a view as to how much you could increase throughput and calculate costs per case in various bands of user numbers. Then you would start the difficult job of honing down the offering. That is how Geoff Bezos would do it.
It seems unlikely that, in the face of such silence, anything like a quantum leap will emerge in England and Wales towards greater accesss to justice led by the courts. Hopefully, however we will be put to shame by jurisdictions elsewhere and perhaps international experience (which will, by and large, be common) will provide assistance.