Happy the few who could attend Victoria University’s Sir Zelman Cowen Centre symposium on Online Dispute Resolution: the State of the Art this week. The afternoon Melbourne temperature was reported as a balmy 20C or 70F. Meanwhile, here in London, it got quite close to freezing. And not only the weather was better in Australia. The apparent enthusiasm for ODR downunder was rather more mixed in London.
The Lord Chief Justice has just published his 2018 report. He led on the need for the need to upgrade dilapidated buildings and joined the predictable push for a better ‘judicial remuneration package’. He reported that ‘the collective responses of more than 10,000 judicial office holders’ were gathered in a Judicial Way or Working (JWOW, God help us) consultation. He notably did not say what the judges had fed back – just that ‘the judiciary is working with HMCTS to shape the next steps in the Reform Programme’. So far, so unrevealing.
In giving evidence to the Justice Committee of the House of Commons yesterday, Lord Burnett emphasised the importance of the modernisation programme in removing paper – first from the criminal courts and, to come, the civil. On digital access, he was distinctly bullish. The ONS (Office for National Statistics), he said, had produced figures that suggested 87 or 89 per cent of the population had access to the internet. ‘There is undoubtedly a very small percentage of people who with the best will in the world who will be unable to use computers’. But he continued, ‘The problem of digital exclusion has just not materialised. A very interesting project in Canada which started with a limited property court and expanded to small claims more generally. There, digital exclusion has not been a problem.’ This was presumably the Civil Resolution Tribunal in British Columbia. He was, he said, ‘particularly optimistic about how exciting it [the online small claims court] would be from an access to justice perspective’, particularly for small businesses.
The Lord Chief Justice was right as to the Office of National Statistics. The ONS, in fact, estimates that: ‘In 2017, 90% of households in Great Britain had internet access, an increase from 89% in 2016 and 57% in 2006: In terms of access, 73% of adults accessed the internet “on the go” using a mobile phone or smartphone, more than double the 2011 rate of 36%: In terms of purchases, 77% of adults bought goods or services online, up from 53% in 2008: Clothes or sports goods were purchased by 56% of adults, making these the most popular online purchase in 2017.’
Lord Burnett did not, however, address the issues of legal capability which researcher Catrina Denvir, in particular, has argued must be regarded as distinct from issues of digital access or capability. Lord Burnett’s hopes for small businesses may well be met: digitalisation should assist them to litigate. But, they are likely to have very different skills from those of individual people, perhaps particularly the tribunal users who will soon be directed through the online system.
Lord Burnett’s upbeat assessment was somewhat contradicted by a report from another judge, Mr Justice Birss, leaked to the Law Society Gazette and also published yesterday. He is chair of the Civil Procedure Rule Committee overseeing the Online Civil Money Claims project. This was held out by Lord Burnett as a great success but Mr Justice Birss said it had been ‘under-resourced’ and required significant improvements. The minutes of the CPR committee apparently recorded with disdainful brio: ‘The project is being delivered under the agile technology, which works well for video games but less so for delivering court processes.’ The problem seems to be that money claims are actually less homogenous than had been assumed. We don’t seem to know if individual users have the requisite legal capacity or not but the system seems unhelpful in anything but a straightforward collection of a debt – the main use by businesses of the online money claims procedure.
The senior judiciary – faced with their number outraged by lousy working conditions; what they see as low remuneration; and reducing pensions – may well feel that they have to pick their battles. Lord Burnett may be unwilling to spread his criticisms too thinly. However, all is not sweet summer in the court modernisation programme and it is not helpful to pretend that it is.