Longtime mediator, Graham Ross of The Mediation Room has reflected on his attempt to use the Beta version of the procedure for a money claim in the online small claims court for England and Wales. He has published his thoughtful account in the Infolaw newsletter. His argument is summarised in a tweet by Delia Venables, the newsletter’s joint editor with Nick Holmes, as looking like ‘important opportunities to move online justice forward in new ways have been lost in an effort to “look” as if progress has been made’.
Graham Ross found that the new system was, in effective, a minimal digitalisation of existing procedures. There are no guided pathways; no built in assistance for users (who increasingly will be acting with help from legal aid); and the system effectively leaves it all to potential litigants to make their own claim; there are no checks or structure to assist them: ‘Apart from a series of questions designed to identify the basic information about the parties you are given a blank box in which to explain the case.’ The article is worth consulting as an example of how proposed online should be tested – and, if necessary, challenged. ‘I was left with the impression that I could have answered with information that my case was totally devoid of merit with just a series of rambling random sentences and the case would have issued on payment. This is not how an online justice system should operate’.
Graham knows where the bodies are buried because (full disclosure: like me) he was a member of Richard Susskind’s working party that originally suggested what was then called the Online Solutions Court. The idea was taken up by Lord Briggs in his interim report and survived into his final version. In between the two, the author visited British Columbia to see its Civil Resolution Tribunal which he took to be an example of what he had been talking about. And, though you could argue that its impact is still to be rigorously and independently researched, the CRT remains the standard against which Her Majesty’s Courts and Tribunal Service must be measured. It is the most advanced online small claims provision in the world which has been based on collaboration with existing agencies and analysis of user need. Go have a look at its Solution Explorer if you want to see how HMCTS fails so comprehensively to meet the aspirations of the Susskind group or Lord Briggs. Their fate has been extensively explored in this blog eg here and here.
The latter specifically argued:
It should be noted that HMCTS already seems to have changed Lord Briggs original conception of the first phase of the civil process in small claims … Lord Briggs stated that: ‘success will be critically dependent upon the painstakingly careful design, development and testing of the stage 1 triage process. Without it, it will offer no real benefits to court users without lawyers on a full retainer, beyond those inadequately provided by current practice and procedure. Pioneering work in British Columbia suggests that it will be a real challenge to achieve that objective by April 2020, but one which is well worth the effort, and the significant funding budgeted for the purpose.
The concept of a Stage 1 can be seen in operation with the Solution Explorer of the Civil Resolution Tribunal. It is automated; it suggests different ways of approaching different problems; it suggests courses of action. It is a really imaginative way of seeking to keep potential litigants out of the court and of structuring their search for an out of court solution … ‘
As the online court proposals have developed, the idea of creating something like the CRT’s Solution Explorer or Lord Briggs Stage I have become increasingly more remote. It seems likely that Stage 1 will be reduced to a rather mechanistic and uninspiring signposting process – with Stage 2 deploying non-judicial conciliation officers to encourage agreement. This could end up looking – and being – rather cheap compared with the imaginative approach originally heralded.
Well, Lord Briggs said it first and let it be repeated: Without a proper intake stage along the lines of the CRT reform ‘will offer no real benefits to court users without lawyers on a full retainer, beyond those inadequately provided by current practice and procedure’. And that is the problem that arises from leaving an administrative semi-independent agency to implement policy in an area where the relative responsibilities of judiciary and executive are unclear; ministers are not engaged; and there is no statutory or Parliamentary guidance.