Small Claims: exploring solutions

The Civil Resolution Tribunal (CRT) in Canada’s British Columbia gets global coverage as the first operational online formal small claims jurisdiction. And, indeed, from 1 June 2017, the tribunal has had small claims jurisdiction over most matters to a value of $CAN5,000 (£3044). However, in some ways, the most interesting aspect of the tribunal is not the online small claims function as such but the ‘Solution Explorer’ which has been developed as its front end.

The CRT has a freedom in its operation precisely because it stands outside the formal court structure. It was established by its own legislation passed in 2012. This makes it structurally different from the proposed Online Solutions Court being developed by Her Majesty’s Courts and Tribunal Service in England and Wales. That will be part of the unified tribunal and court structure. The result is that the CRT may have more flexibility in developing its procedures but perhaps less influence within the court structure as a whole. BC’s provincial judges have been compensated for the loss of their smallest claims by an expansion of their jurisdiction at the top end where they are taking cases from BC Supreme Court. They are very happy with this. So, the CRT has been able to some extent to slip under the radar while it gets itself established. The Online Solutions Court will be part of the mainline judicial function.

The Canadian and domestic procedures are, however, conceived as beginning in a very similar way. This is the very English Sir Thomas Etherton: ‘The first stage of the process will … see the Online Solutions Court expand our ability to secure access to justice in two ways. First, it will help individuals identify the nature of their problem. The very essence of securing access is to secure an understanding of the legal framework. Such understanding will enable those individuals who have not yet reached the stage where a legal action has arisen to take steps to avoid that point being reached. It will secure access to preventive justice. Secondly, it will help other individuals to identify the alternatives to litigation. If the alternative identified is an Ombudsman scheme, it will help enhance two forms of justice: justice for the individual in the form of resolution under the scheme; and justice for others through the Ombudsman’s ability to promote systemic improvement – so that other individuals in the future are not put into the same position. In that way, this also is a form of preventive justice, made accessible to all through the changes it makes. I think that no one can suggest that it is not a core function of government to promote access to justice in this way.’

The blandness of the language perhaps obscures how radical this would be. For the first time, the court would be taking responsibility for linking individuals from general information about their case to specific action that they can take. You might have got some of this in the past from an unusually well informed counter clerk – unlikely now, of course, that they have all been redeployed – but never seen as much to do with the core processes of the court. But, if you shift processes online, then parameters change and Sir Thomas is right: you have to consider how an individual will correctly interact online with the right institution and avoid, on the one hand, mistaken over-use of the courts and, on the other, unjustified failure to take advantage of them.

The CRT’s Solution Explorer provides a concrete example of what can be done and how digitalisation goes beyond the simple translation of procedures from the written to the virtual word. It is really worth checking this out. As useful as any verbal description in understanding the process is the CRT’s youtube video which only takes three minutes to play. Call it up now. Currently, the explorer covers four overall areas: buying and selling of goods and services; construction/renovations; and employment (this is in addition to the CRT specialist housing jurisdiction). Make up a case and follow through the procedure. You are taken down a logic tree or guided pathway; a sidebar tells you how far you have got; you can save your work and return; you come across summaries of the relevant law; opportunities for referral; and draft letters. It rapidly becomes clear that much more thought has been given to this than just a routine intake and hand-off procedure. Without taking sides, the user is being guided into handling their own case and exploring options which will include, but not be limited to, court processes.

To date, the explorer covers around ten sub-areas in some detail within its overall categories and has been most used in the field of goods and services – by both buyers and sellers in almost equal numbers. Feedback has been crucial to development and there are ambitious plans for next generation development including the incorporation of more cultural sensitivity to different approaches to mediation and negotiation and the addition of a natural language search functionality.

Progress of individual users through the system can be very precisely measured, monitored and managed. 5,000 users explored solutions in the first four months. The structuring of a person’s case continues into the decision-making phase with facilitators helping in the preparing a tribunal decision plan in which facts are agreed; evidence is listed; arguments/submissions marshalled together with their responses. All this is in still in the process of development but the BC Ministry of Justice like the approach so much that they have already piloted an extension to child support. That takes it into the territory once occupied by the Dutch Rechtwijzer and close to the holy grail of demonstrating an online system which facilitates the settling of child maintenance disputes in a mediated way. The system is developing and the Ministry team acknowledges the need for continuous improvement and an agile methodology (of course). It is already getting unprecedented data and feedback on use.

It is worth thinking how this kind of approach might be implemented in England and Wales, both for its individual benefit and as a way of bringing out the issues by such a comparison. It is not clear whether the Solution Explorer would mean anything to Sir Thomas Etherton – though it does seem to be exactly what he was talking about. However, the building of this kind of process requires a knowledge about substantive legal problems and how people practically can solve them which would go beyond what a court in this country would normally hold themselves out as holding.

So, there might be options. The court could develop a similar front end, as Sir Thomas promises, or that function could be delegated to another institution more in tune with self represented litigants. That could be the Citizens Advice Service, the leading national information provider  (not please, please some generalist out-houser picking up contracts across government); a development of the CourtNav process developed by the Royal Courts of Justice CAB (which guides some litigants through the process); the national AdviceNow website (which already contains material for self-represented litigants); or some new consortium of law centres and other specialist advice agencies like Shelter.

Such an approach would require recognition of the importance of the role by the Ministry of Justice; sufficient cash to support it; and a major shift of perception in relation to contracting (from seeing it a cost-cutting measure to a strategic partnership). Too much to ask perhaps. Then, we go back to the courts: let’s see what they can do with their own Solution Explorer. BC gives us a benchmark against which we can measure their relative success – or failure.

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