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Closing the gap using technology

27 January 2016 - By Judge David Harvey

The article “Mind the Gap – Closing the Justice Gap” (LawTalk 878, 20 November 2015) makes sober reading. It is a lengthy piece and raises a number of issues.

Perhaps the challenges that the article identifies can be summarised in this way. Access to justice is impeded by complexities of process, the cost of litigation and the scorched earth policies surrounding the reduction in legal aid.

For a number of reasons, there is an increase in self-represented litigants who create issues for lawyers and judges in the litigation environment. The discussion in the article tells a story of a system that is in trouble.

Justice Winkelmann suggests that we need to think about new models of working although the tone of the article throws the gauntlet down at the feet of the legal profession. The LawTalk article is premised upon the continuation of the existing court system, and my suggestion is that therein lies part of the problem.

New model

This article suggests an example of a new model of working for the courts. It involves a comprehensive shift in the approach that we currently have to litigation. It is driven by the use of technology. And it is offered as one of a number of possible options. I am sure that there are others.

Some examples of technology use are given in the LawTalk article. The provision of legal information and other online legal and dispute resolution services take the argument only so far and fail to address deficiencies within the court system itself. So what options are there for the deployment of technology in the court system?

What the literature on the use of digital systems within the courts and dispute resolution process makes clear is that there are two distinct avenues where technology can be deployed.

The first is by utilising technology within the existing court process as an alternative to paper-based/print-based systems. The objective is to increase efficiency and decrease costs. In this respect the utilisation of technology becomes a reflection or a mirror of existing processes. An example may be seen in the Electronic Bundles Protocol. It may introduce some efficiencies and cost saving along with the ability to use and manage gathered data more effectively. But the mirroring of the current system using digital tools fails to realise the opportunities that digital technologies present for a complete revitalisation and renewal of systems and perpetuates fundamental problematic processes.

The second avenue relies on the underlying properties of digital communications technologies and presents the justice system with increased opportunities for wide ranging reforms that nevertheless maintain the various universal values of justice, fairness, participation, equality, promotion of stability and predictability, participation, truth, legitimacy and efficiency.

Ultimately transformative

The example I put forward lies within this second area involving a full – albeit disruptive but ultimately transformative – utilisation of technology.

One of the obstacles to access to justice identified in the article is that of process. Our rules are premised upon reaching a court hearing. The High Court and District Court Rules are a collection of milestones with the destination being the presentation a case in court.

Two reports from England have suggested that model be revisited. The first is the report of the Civil Justice Council, chaired by Professor Richard Susskind, about Online Dispute Resolution for low value civil claims.1 The second was released by the organisation Justice entitled “Delivering Justice in an Age of Austerity”.2

The Susskind Report recommends a process for the resolution of low value civil disputes of up to 25,000 pounds and the establishment of an Online Court to deal with such matters. However, the radical suggestions in the Susskind Report are directed to the emphasis placed on the court. Although it is a forum for civil dispute hearings it is not the ultimate goal and rather it is seen as a last resort.

Lord Justice Richards cogently summarised the Civil Justice Council proposals in his speech “Civil Litigation: Should the Rules be Simpler” of 25 June 2015 at Gresham College.3

“[The Report] proposed a fundamental change in the way the court system handles low value civil claims, by the introduction of an internet-based service known as Her Majesty’s Online Court. The idea is a service with a three-tier structure. The first tier is that of online evaluation, involving a suite of online systems to guide users who think they may have legal problem and to help them if possible to avoid a dispute. The second tier applies where a dispute has arisen and involves trained facilitators working online to review papers and statements from the parties, using a mix of alternative dispute resolution and advisory techniques to try to get an agreed settlement. Only if that fails are judges brought into play at the third tier, for judicial dispute resolution, deciding suitable cases online, largely on the basis of papers submitted to them electronically, within a structured system of online pleading and argument.”

Developing the model

Let me develop the model in a little more detail.

First, it must be emphasised that the online court is part of the court system. It is not court sanctioned ODR but it utilises electronic communication tools exclusively. Secondly what is important is the change of emphasis.

Tier One is an online advice giving case evaluation process for prospective litigants. Using online tools citizens can ascertain the legal issues and principles applicable to their claim and work through a process to determine the most effective legal solution available. Rather than the demand “I must go to court” the focus of Tier One is “What steps should I take – what options are available?” And, as noted, the means of enquiry is online.

Tier Two comes into play where a dispute has been identified. The objective is to resolve the matter by negotiation, mediation and dispute resolution – once again carried out online. This is characterised as “dispute containment.” It is actively led by facilitators in an inquisitorial rather than an adversarial manner. The approach is based partly on the work of adjudicators who work in the English Financial Ombudsman Service. They manage to dispose of 90% of the service’s workload, so that only 10% of cases reach the Ombudsmen.4 The use of Tier Two would incur a modest court fee.

Tier Three involves a recognisable court hearing before a judge, but which would still be conducted online. Professor Susskind observes:

“Online judges will be full-time and part-time members of the Judiciary, who decide suitable cases (or parts of cases) on an online basis, largely on the basis of papers submitted to them electronically, as part of a structured but still adversarial system of online pleading and argument. This process will again be supported, where necessary, by telephone conferencing facilities. The decisions of online judges will be binding and enforceable, enjoying the same status as decisions made by judges in traditional courtrooms. A court fee will be payable but much lower than in today’s courts. Aside from making judicial services available at a lower cost, this will provide a new, more flexible career option for the Judiciary”.5

New rules and practices

The establishment of the Online Court will require a new body of rules and practices. These should be in plain language and be consistent with the broader aspiration of a court service that is intelligible, accessible, speedy, and proportionate in cost.

The Online Court proposals use the metaphor of a filter with Tiers One and Two disposing of the majority of cases so that only a few get to adjudication. Efficiencies and cost savings come into play because cases will be handled by facilitators rather than judges. Those cases that do reach judges will be handled with less expense because they will not involve the use of court buildings and their associated operating costs. ADR processes will become integrated into the formal court structure rather than as an alternative to it. Thus the system carries within it the underlying principles of accessibility, legitimacy and independent adjudication. The Tier One and Tier Two processes can be seen as an online form of Early Dispute Resolution (EDR).

The justice report built on Professor Susskind’s proposals in three ways. First, it was considered that the scope of the dispute resolution model could extend to most first instance proceedings across the civil courts and tribunals without a monetary amount limiting jurisdiction. I agree. Professor Susskind’s ODR proposal was restricted to certain civil claims up to a certain value.

Secondly, the justice model further refined and clarified the scope of online facilitation and online adjudication.

Thirdly the justice proposal considered an integrated online and telephone platform offering a first port of call for individuals with potential legal problems and offering information, advice and assistance as the case proceeded.

Videoconferencing

One of the shortcomings of the Susskind proposal is that in Tier Two and Three there is an emphasis upon telephone conferencing facilities. The physical presence model is suggested if there may be issues relating to credibility. It seems curious that the utilisation of videoconferencing facilities or some other form of VOIP\video technology is not proposed to eliminate the rather disembodied utilisation of the telephone and to enable virtual “presence” in the online court.

Videoconferencing was recognised in the Susskind Report as part of a further and future development – what are referred to as second generation ODR systems. It seems to me that there is no reason why video technology could not be deployed upon the introduction of the system.

There is already provision for the use of AVL in New Zealand in the Courts (Remote Participation) Act 2010, although in its present form there are two impediments to its wider use. The first is identified at page 13 of the article in LawTalk 878. AVL is primarily used for procedural criminal hearings. The second impediment is that the dedicated court-based AVL facilities are “Courtroom Based” thus implying physical presence based upon location whereas wider use of VOIP applications such as Skype for Business would realise the inherent underlying promise of the Courts(Remote Participation) Act.

Of course, there are objections to such a fundamental change in the civil justice system. Arguments such as the weight of history or a proven system are quickly eliminated. Dickens’ Bleak House tells a story of the court process that is as relevant now as it was then, and even Hamlet lamented the law’s delays in 1599. In the law we are realising Santayana’s warning about the repetition of the mistakes of history.

As for a proven system the answer lies in the maxim res ipsa loquitur. The system itself demonstrates its failings.

Concerns will be expressed as to the “dehumanising” effect of technology and the importance of “presence”. The Millennials who will inherit our creaking justice system with its rules devised in an earlier communications paradigm receive their information from and communicate by screen-based hand held devices. An Online Court will not be alien to them. Rather it will be an expectation.

And the association of “presence” with the assessment of “demeanour” and credibility has been eloquently dismissed by Robert Fisher QC in his excellent article on the fallacy of demeanour.6

Complete overhaul

What is required is not just a modification of present procedures and practices, but a complete overhaul. The provision of an Online Court is a starting point.

One hesitates to suggest that by introducing such a system it is one of a suite of dispute resolution systems offered by the state. Characterisation of the courts as a public service for consumers, or that the court system merely provides a mechanism for the public to enable cases to be resolved both overlook the fundamental position of the courts in a democratic society.

The comments of Lord Chief Justice Thomas of Cwmgiedd in his speech The Centrality of Justice: Its Contribution to Society and its Delivery on 10 November 20157 are particularly apposite.

He observed that there was an emerging view that our judicial system is simply nothing more than a provider of an adjudication service either between the citizen and the state or between citizens and was concerned that such a view would diminish the role of the judiciary and the justice system as one of the pillars of democracy.

He cited with approval a comment by Chief Justice French of the High Court of Australia that “courts are not and should not be seen to be providers of a spectrum of consensual and non-consensual dispute resolution services and if it was seen as such was there any advantage or justification in the state’s monopoly over the provision of justice.”

Lord Thomas’ argument was that the justice system was more than simply this because as a pillar of democracy, it safeguarded the rule of law, maintained the certainty of law while allowing for its development, provided public access to the law, provided openness and accountability and finally made decisions independently of interests.

A creative approach to the utilisation of technology to reform civil dispute processes advances the quest for better and more affordable access to justice and will enhance public confidence in an effective, transparent system of justice using tools relevant to the 21st century.

The use of technology can significantly challenge and have the effect of transforming our present clumsy, creaking, archaic process into a streamlined, inexpensive, efficient system less prone to error. The Digital Paradigm offers all these opportunities to radically reform our civil processes. The presence of unused digital tools that hold so much promise to effect this reform is the real gauntlet challenging the court system to move into the digital paradigm.

In closing I point out that in this article I have addressed problems experienced in the civil jurisdiction. As I was writing, there arrived on my Twitter feed a reference to crowd sourcing jury trials. But criminal trial processes may require separate consideration on another day.

District Court Judge David Harvey has a keen interest in information technology and the law, from the printing press to today’s computer-based information technology. His PhD explored an historical aspect of this and his thesis The Law Emprynted and Englysshed is sub-titled The Printing Press as an Agent of Change in Law and Legal Culture 1475-1642. Judge Harvey emphases that this article is written in his private capacity and should not be taken to represent the views of the judiciary.

1. See www.judiciary.gov.uk/reviews/online-dispute-resolution (last accessed 14 November 2015) The report is available at www.judiciary.gov.uk/wp-content/uploads/2015/02/Online-Dispute-Resolution-Final-Web-Version1.pdf (Last accessed 14 November 2015) I shall refer to this as “The Susskind Report”.

2. A copy of the report is available at http://justice.org.uk/our-work/areas-of-work/access-to-justice/justice-austerity.

3. www.gresham.ac.uk/lectures-and-events/civil-litigation-should-the-rules-be-simpler (last accessed 19 November 2015) This link contains video of Richards LJ’s address which is also available at www.youtube.com/watch?v=kwD_F-JJC5E (last accessed 19 November 2015).

4. “Online Dispute Resolution for Low Value Civil Claims” para 6.3.

5. Ibid. para 6.4.

6. Robert Fisher QC “The Demeanour Fallacy” [2014] NZ Law Review 575 at 582. See also Chris Gallavin “Demeanour Evidence as the backbone of the adversarial process” LawTalk Issue 837 14 March 2014.

7. https://www.judiciary.gov.uk/announcements/speech-by-the-lord-chief-justice-the-centrality-of-justice (last accessed 19 November 2015).

Last updated on the 27th January 2016