The Online Solutions Court: decision trees in the desert

You would not expect Dubai’s bid to become a global judicial decision hub in commercial disputes to have much relevance for the Online Solutions Court for small claims proposed for England and Wales. However, the Dubai International Financial Centre and the Dubai Future Foundation have combined to create a Courts for the Future Forum to oversee disputes over disruptive technology such as drones and blockchain. The forum has drafted principles for discussion which include a section on what it calls ‘micro disputes’ with a value of less than $50,000. The relevant draft practice direction contains at least four lessons for the proposed online small claims court.

First, the practice direction has been published in order ‘to make it easy for lawyers, tech experts and entrepreneurs to comment on what they think is good, missing or unhelpful well before these rules are put into action.’ The process is so open that anyone can go online and comment. It is difficult to fault this transparency in action. The draft rules have the great virtue of enhancing the possibility of imagining the proposed new regime.

For example, the draft makes it clear that some claims will fall outside the proposed jurisdiction of the court as, by implication, unsuitable. A similar approach by Her Majesty’s Courts and Tribunals Service (HMCTS) would be helpful. There can then be an open debate and what should be in and what out. Dubai wants to include any case under the financial limit ‘that does not involve a substantial dispute of fact’ and which arises out of peer to peer consumer transactions where neither party is a corporation. The HMCTS could publish draft rules to make clear what criminal and civil cases it thinks are appropriate or inappropriate for its new procedures. Complex disputes of fact both in criminal (even summary) and civil cases might sensibly be excluded from the start.

Second, the draft rules give some hint of the way that technology will automate the process. There will be an ‘online dynamic claim form’. This, and any equivalent defence form, will be ‘based on decision-tree software that procure all necessary information for the conduct and disposal of the claim from the outset through a series of questions and answers.’ Thereafter, ‘decision-tree software will compile the relevant information and automatically apply the relevant Court rules’. Indeed, As part of the online dynamic process, whether by installing an application on their smart phone or other electronic device or otherwise, litigants will be required to provide the Court with … permission to access their smart phone or electronic diary for the purpose of notifying the parties of steps in the litigation’. Consistent with that, ‘Where a step is required to be taken in the litigation, notification of that step and any subsequent reminders will be given via smart phone or electronic diary notification.’ If this is what the HMCTS intends then let us hear about it before implementation.

Third, the court will be responsible for operating a very tight and specified timetable. For example, it is intended that ‘first instance … decisions will be reached within 3 business days of the date’ filing a defence. These deadlines continue up the process in a way that is likely not to survive consultation. As drafted, an appeal must be made within two days (and must be more likely than not to be successful or have some other compelling reason to be heard). It has to be decided within three days of receipt of a response from the respondent. We could benefit from deadlines for court action within our own rules – though perhaps a little less Draconian.

These draft rules are, manifestly, not directly appropriate for small claims in England and Wales. They are, any way, likely to be amended in consultation and there are some which sound positively threatening, such as the last ‘The Universal Vault will execute judgments instantaneously online via smart contracts utilizing the blockchain account details provided at the point of the party joining or commencing the …proceedings.’  May we all be preserved from the Universal Vault but HMCTS could perhaps take a time out from infinitely agile software production to give us draft rules that indicate the future destination that it has in mind. That might even save some development money. And there seems no reason why consultation should not be as open as Dubai’s has commendably been.

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