ODR: if you read only one judicial report, read this one

The senior English judge, Lord Justice Briggs, has now published a final report on civil justice that includes significant proposals for an online court. His interim report attracted significant domestic and international interest. For anyone interested in developing ODR within the courts, his reports are likely to be mandatory reading for some time to come because they deal with the major issues and have been written with an eye to implementation. This is intended for 2020. They stand as a coherent approach to introducing an online process for small claims. Since publication of his interim report, Lord Justice Briggs has made contact with those working in the California courts (by video); checked out the Rechtwijzer; and has physically gone to British Columbia to see the Civil Resolution Tribunal. So, this was a high powered judge who may be regarded as in position of all the relevant facts. What did he make of them?

This post is a crib and an encouragement for those interested in the field to consult the original sources. The online court is dealt with in Chapter 6 of the final report.  This is broadly self-standing. However, the final conclusions and recommendations in Chapter 12 are so helpful that they are reproduced below and real aficionados will want to consult Chapter 6 of his interim report where some of the ideas are expanded.

The core recommendation is that, as summarised for the press: ‘There is a clear and pressing need to create an Online Court for claims up to £25,000 designed for the first time to give litigants effective access to justice without having to incur the disproportionate cost of using lawyers. There will be three stages: Stage 1- a largely automated, inter-active online process for the identification of the issues and the provision of documentary evidence;  Stage 2 – conciliation and case management, by case officers; Stage 3 resolution by judges. The court will use documents on screen, telephone, video or face to face meetings to meet the needs of each case.’

The final recommendations as set out in Chapter 12 are:

5. The Online Court should eventually be made compulsory as the forum for cases within its jurisdiction, save where otherwise recommended and subject to the power of the court to transfer cases to a higher court on grounds of complexity or public importance: …

6. There needs to be an intensive search for, funding and development of Assisted Digital resources for those challenged by the need to access the Online Court by electronic means, rather than the preservation of a parallel paper path: … Such assistance should include the making of the Online Court accessible by tablet and smart phone rather than just desktop and laptop computers: … and serious consideration should be given to funding the voluntary agencies to expand their services to meet this requirement, as an alternative or supplement to a service provided from within HMCTS: …

7. A limited fixed recoverable costs regime should be developed for the Online Court, designed to be or contribute to an economic model for the provision of early, bespoke, affordable advice to would-be litigants on the merits of their case (including defence) from a qualified lawyer, by the use of unbundled services from solicitors and direct access to barristers: … A modest element of fixed costs might also support the provision of skilled cross-examination in cases really needing it: … Otherwise the costs regime for the Online Court should be modelled on that applicable to the Small Claims Track: …

8. The early start made on the design, development and testing of the knowledge engineering needed for stage 1 of the Online Court should continue to be treated as a priority: …

9. £25,000 is an appropriate  rst steady-state ambition as the ceiling for the Online Court’s jurisdiction: … But it should be approached in stages by a soft launch of the new court, either by using an initial ceiling of £10,000, or by launching the service of the court by reference to specific case types: …

10. Stage 1 of the Online Court should not be postponed to the development of Stages 2 and 3: …

11. The materials accessible to court users by engaging with the Online Court should emphasise that litigation should be regarded as a last resort, after using all available means of pre-issue ADR: …

12. Conciliation measures available to users at Stage 2 of the Online Court should not be limited to short telephone mediations. Case Officers should identify and recommend to parties the conciliation method best suited to their case, which may include ODR, both telephone and face to face mediation, and judicial Early Neutral Evaluation: …

13. The need for transparent and open justice needs to be kept under constant review as a priority in the design of the Online Court: …

14. The Online Court should be a new court, separate from the County Court, authorised by primary legislation, and regulated by simple rules made by a new cross jurisdictional Online Court rules committee, rather than by the CPR: … Limited amendment to the CPR will be needed to accommodate cases transferred from the Online Court on grounds of complexity or public importance: …

15. The Online Court’s jurisdiction should extend to all money claims up to £25,000, save for specific exclusions, and should include unspecified claims: …

16. Claims for possession of homes (even if accompanied by a money claim) should at least initially be excluded from the Online Court: …

17. Personal Injury (including clinical negligence) claims should also be excluded if they would otherwise fall within the Fast Track or Multi-track: … But voluntary admission of PI claims which are, or are hereafter brought within, the Small Claims Track, may need to be considered: …

18. Professional (non clinical) negligence claims will also quality for exclusion on the grounds of typical complexity and asymmetry, at least until a means of having them determined by specialist judges in Stage 3 of the Online Court can be developed: …

19. Intellectual property claims should be excluded from the Online Court, since there exists a highly regarded specialist court, IPEC, with its own small claims track, for their determination: …

20. Claims for damages only for breach by landlords of repairing obligations should not be required to be brought in the Online Court (if they would otherwise qualify for the Fast Track), but tenants should be able to do so if they wish. Claims seeking an order that the landlords do the work, and counterclaims in response to possession claims should be excluded: …

21. Appeals from determinations of cases in the Online Court should lie from the District Judge in the Online Court to the Circuit Judge (or Recorder) in the County Court. Second appeals should go to the Court of Appeal. Permission to appeal should be required at both stages: … Appeals should lie on questions of fact and law: … The procedure for first appeals from the Online Court should be laid down in the new Online Court rules, not in the CPR: …

22. Two additional early stages of the process in the Online Court should be designed (beyond the 3 stages outlined in the [Interim Report]. The  first should alert would-be court users to alternative forms of resolution, sources of free or affordable advice, and basic commoditised legal guidance. The second should be designed to ascertain whether there really is a dispute between the parties which the court needs to decide, or whether the claim is for enforcement of rights or obligations not in dispute: …

23. By-passes around detailed Stage 1 triage will be needed for parties with legal representation, or corporate litigation departments. But the by-passes will still have to generate particulars of claim which the Online Court software can read and digest: …

24. Determination of all disputes about litigants’ substantive rights and duties, which cannot be settled at Stage 2, should be made by judges (usually District Judges or their Deputies) at Stage 3, by whichever of a traditional trial, a video hearing, a telephone hearing or on the documents (or by some combination of those) is best suited to the individual case, and as directed by the Case Officer, subject to the parties’ right to have the mode of determination reconsidered by a judge: …

25. Continued improvement in the provision of public legal education should be carried out, alongside but in addition to Assisted Digital, following the lead given by the courts and voluntary agencies in California and British Columbia, as a joint activity by HMCTS and the voluntary agencies: …

26. The new Online Court should be called the Online Solutions Court, with a view to removing Online from the name once its continuity with the name Online Court is established: …

So, for an appraisal of what he said, read on to the next post.

Roger Smith

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