Court Modernisation: the judges’ expectations

For those following Her Majesty’s Courts and Tribunals Service (HMTS) modernisation programme, there is reading to be done. The next post will cover some of the papers have an ever-lengthening list of written evidence logged as submitted to an investigating House of Commons committee. This post covers two major judicial interventions: the ‘innovation plan’ for the modernisation of tribunals issued by the President of Tribunals, Sir Ernest Ryder, and a roundup of latest developments, which he modestly called ‘a box of odds’ from the President of the Family Division, Sir Andrew McFarlane. Both repay a bit of study if you want to follow developments.

The two Presidents are aware that the issue of implementation is as important as any theoretical plan. Sir Andrew took the advocate’s best course with a tricky point: meet it full on. Online divorce is now administered from a central base in Stoke in Trent. This has taken over from 11 previous regional centres about which Sir Andrew had to admit: ’On any view the Regional Divorce Centres have not worked well, indeed, some, particularly Bury St. Edmunds, Liverpool and Bradford have provided a wholly unacceptable service. I am, sadly, confident, that each member of this substantial audience [of solicitors at the Resolution conference he was addressing] will have had personal experience of delay and inefficiency, measured in terms of months rather than weeks, over the past year or more because of the move to centralisation in these regional divorce centres … I can only apologise to you, and, more importantly, through you to your clients, for this unhappy state of affairs.’ But all will be different this time.

For his part, Sir Ernest needs no prodding to acknowledge the problems faced by some of his most important tribunals, those covering social security. Emily Dugan of Buzzfeed reported his disenchantment with departmental standards in November: ‘Ryder said his judges found that 60% of cases were “no-brainers” where there was nothing in the law or facts that would make the DWP win. In an extraordinary outburst against what he said was the incompetence of the department, he said he and his fellow judges were so incensed by the volume of cases where there was “no justiciable defence to the appeal” that they were considering sending them back – or charging the DWP for the cases it loses. He said: “It’s an inappropriate use of judicial resources, it’s an inappropriate experience for the users, and the cost is simply not right.” The percentage of cases lost by the DWP on appeal has been growing rapidly. In 2007, 44% of cases heard in the Social Security and Child Support tribunal went against the DWP. Ryder said the figures have now risen to a “staggering” 61%.’

Sir Ernest’s current task is to present, and deliver on, an implementation plan for the next year. On paper, his plan sounds fine. Choice of channel will remain: ‘The digital service complements the existing paper process which will remain in use and does not replace the need for panel hearings in cases where that remains appropriate.’ It will be possible to upload supporting evidence. 

The big procedural innovation for social security appeals will be ‘continuous online resolution’. This will ‘allow parties to respond to and communicate digitally with the judiciary at the earliest stage of case preparation and will provide a quicker route to resolving a benefit appeal online, where it is possible to do so, without the need for a hearing. Through a process of triage, the Judge will determine suitability for continuous online resolution and will ask a series of structured questions until enough information has been gathered either to go to a hearing or to issue a decision … other methods [will follow] as Continuous Online Resolution develops. This might include an asynchronous ‘chat’ function, synchronous ‘chat’ functions and Skype/video/telephone conversations.’

Here is where any onetime welfare rights specialist gets nervous. One advantage of courts in ensuring the accountability of government is finality. They make decisions and governments stick or twist – accept or appeal. We just don’t know what will happen when tribunal staff begin to interact with departmental officials with such a bad current track record. DWP decision-making is so terrible that tribunal staff and judges will have to be vigilant that the tribunal is not infected by the kind of performance that Sir Ernest is reporting giving rise to near two thirds failure rate. It is widely held that the relevant Department has sacrificed any concern with quality for hitting production targets. Maintaining the success/failurerate would be one of my ‘off the cuff’ immediate practical ways of testing the effectiveness of the process – albeit that it should force better initial decision-making in the longer term.

Sensibly, Sir Ernest seems to be going ahead with video hearings first in tax cases with a bit more caution in immigration and asylum (wise, a lot of litigious lawyers around), employment (toxic history of government restriction of access) or social security (problems of access to technology). However, everyone should get new case management, electronic filing system and there are also plans for digital recording of all hearings and better electronic presentation facilities. Attention is being given to data collection, security and evaluation and, in addition, ‘The team have commissioned an external academic from the Administrative Justice Council (AJC) (Dr. Natalie Byrom, … of the Legal Education Foundation) to advise upon the methodology of evaluation, in particular in respect of access to justice.’’

Sir Andrew has more actual progress to report. ‘From mid-2018 litigants in person have been able to issue divorce petitions online. So far, some 35,000 have done so. This represents 55% of divorce petitions issued by litigants in person during the past 10 months. In contrast to the astonishingly high error rate of 40% detected in paper divorce petitions, the rejection rate for error amongst online petitions is currently 0.4%. 84% of litigants using the online process have indicated satisfaction with the process.’ The full process is moving online so that ‘ solicitors, will be able to log on from anywhere, at any time, and see the state of an individual divorce case as it moves forward. You will also be able to file documents and communicate with the court and/or the other parties remotely through the system.’

On video hearings, Sir Andrew expresses some caution: ‘In my view … most Family Law hearings, whether they concern money, children or domestic abuse, benefit significantly from the presence of the key players, be they the parties or the judge, being in the same place at the same time; this applies as much to what happens in the corridor outside court as it does to the court hearing itself.’

So, these are the expectations of the judges leading the process with HMCTS.  Read the next post for experience to date.

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