One of the issues for those developing ODR systems for small claims, as recognised both in the Ministry of Justice Transforming our Justice System and the earlier Briggs report, is the level of assistance to be given to users before they pay their money and enter the court system. In para 6.17 of his final report, Lord Justice Briggs said:
The solution [to online exclusion of users] lies in my view in the most intense search for, funding, development and testing of services to assist the computer-challenged, sometimes called “Assisted Digital”.
The Ministry report actually recognised that only 30 per cent of users, on government figures, would be ‘self servers’ requiring no further assistance. The majority (52 per cent) would need the digital assistance referred to by Lord Justice Briggs. 18 per cent would be excluded in any event. Their plight is not to be forgotten but this post concerns what might be provided by way of ‘assisted digital’ and, in particular, the lessons from other jurisdictions in this area.
It might be worth beginning by considering what exists at the moment in England and Wales. The government website (gov.uk) has outline guidance on taking a small money claim. This takes you to a more detailed guide from Her Majesty’s Courts and Tribunals Service (HMTCS), the Money Claim Online User Guide. This is clearly laid out but very text driven and neutral in its presentation.
Outside of government sources, help is available from a variety of NGOs. One example is of NGO assistance is provided by the Citizens Advice Service site: this is clearly set out but linear (and rather cold) in its 23 paragraphs of information unrelieved by any illustrations. In terms of practicalities, there is a link to current court fees but no discussion of the kind that you would actually have before starting an action of any kind about the chances of successfully recovering your money even in the event of a positive judgement.
By contrast, the advicenow.uk website has much fuller information, broken up into a series of practical guides with quotes from litigants and illustrations. The second of these contains a whole section headed ‘Is your opponent worth suing?’ The opening page of the section on the website invites feedback:
Are you willing to talk about your experience?
If you are representing yourself in court … action and would be willing to speak to a journalist about your experience, how difficult it is, and anything you have found that has helped, please contact us.
This is, altogether, a rather better and more useful site.
Another good online guide, perhaps the best for money claims at least, is provided by the commercial moneysavingexpert.com. This breaks up its text with illustrations; provides examples and quotes from users; and feels very practical – it gives the court fees payable direct on the site and it gives an illustration of the form that needs to be completed to issue proceedings.
So, what must be done to provide the digital assistance which the government agrees is required by the majority of potential users?
Some indication of what needs to be considered comes from British Columbia’s Civil Resolution Tribunal. Although currently limited to particular types of housing dispute, this will be extended to small claims before long and has a front end ‘solution explorer’ which provides digital assistance. This is worth a look. A video on the site was discussed and embedded in an earlier post. The solution explorer takes you through a set of questions, for example in relation to a neighbour dispute. This gives various assistance including a ‘workbook for negotiating a solution’. You can print off information at the end: a bar measures how far you are through the process at any one point.
BC is particularly well provided for in terms of digital assistance because its Justice Education Society provides a good example of a slightly different approach. Its site on small claims contains a host of videos – several from judges welcoming users; some giving examples of how to handle a case and covering how to fill in the relevant forms; a five-day response chat facility; the requisite online forms and host of information.
These examples from BC indicate just how international are the issues behind how small claims ODR is to be integrated into the courts. This was recognised by Lord Justice Briggs in his final report – after he had been encouraged to visit BC. It is not expressly acknowledged in the Ministry of Justice paper. But, there needs to be the maximum flow of information about what is being tried and what works around the world.
Jurisdictions other than my own are more open to outside influence. For example, Victoria has just held a major international conference entitled Law and Courts in an Online World earlier this month with a range of speakers from the UK, US, and Canada as well as Australia. England and Wales’ Ministry of Justice needs rapidly to join these international streams of information and influence. There may well be other lessons from around the world and I welcome prompting on them.
In the meantime, the BC Civil Resolution Tribunal shows how a Ministry site can maintain its independence but also provide considerably more help than do our official government equivalents. The short review above of non-government sites in England and Wales (to which a number of other commercial and NGO sites would need to be added to make it comprehensive) suggests, in addition, that there may well be advantages in fostering a market of different providers of information. The main general advice site in England and Wales is not the best and, frankly, needs to respond positively to its competition. A further and related issue is how advice and information on procedure is linked to advice and information on substance because somehow this is going to have to be done if the whole process is moved online.
The need for ‘digital assistance’ or ‘assisted digital’ raises complex issues. We may hear more of the Ministry of Justice’s projected direction of travel at a conference under the auspices of the Civil Justice Council next week. Let’s hope so. And we should certainly dread any expression of a Brexit type mentality that we are going it alone on this one – or any repetition of the outrageous and unsubstantiated assertion in the Ministry’s consultation paper that our system is the ‘envy of the world’. Any system aspiring to that description will need to pay considerably more attention to what the world is doing and thinking.