Modern technology has pushed legal jurisdictions to consider other ways of administering justice. Increasingly, there is a trend to deliver justice in an online space, rather than in a physical courtroom. Tentative steps towards online justice have already been taken in New Zealand (eg, audio-visual links) but internationally, a more transformative change is on the horizon: online courts. Advocates for online courts promise they will make justice more accessible and affordable. But how do we know they will really improve access to justice and not merely provide a cost-saving scheme for the state? Empirical research is urgently required to answer many unanswered questions, and the legal profession need to be part of that process. In this article, I will briefly outline the first question and how the legal profession can contribute to the answer.

The new way of delivering justice: online courts

An online court allows litigants to resolve disputes entirely online. These courts provide an end-to-end online platform, where the parties submit their evidence and arguments, attempt to negotiate a private or facilitated outcome, and – if necessary – a judge will adjudicate on the matter. This process is asynchronous, so the parties only go on to the platform at a time that suits them. However, the judge can request a virtual hearing before delivering a decision, which all parties must attend. Proponents argue that online courts increase people’s ability to access justice as a dispute can be filed at any time, from anywhere, and – most notably for this readership – without the assistance of a lawyer.

There are already online tribunals operating in some jurisdictions. In Canada, British Columbia’s Civil Resolution Tribunal (CRT) was the world’s first fully integrated online tribunal. The CRT allows parties to resolve their strata property disputes (Canada’s equivalent to body corporates), small claims disputes, and motor vehicle accident and injury disputes entirely online. Singapore, Denmark, some American states, and Australia are also introducing online elements into their courts and tribunals. The most ambitious version is currently being attempted in England and Wales where a large-scale programme of court reform across all jurisdictions, including criminal, civil, family, and tribunals has begun. In the civil jurisdiction, the reforms include the introduction of an online court for the resolution of low value civil cases.

The trend towards online courts has not been without criticism, with many claiming that it has been driven solely by the need to save money. The trade-off in this drive to reduce costs is that other fundamental principles are being overlooked, such as open and transparent justice, and accessibility for all. The England and Wales Justice Select Committee are currently receiving submissions that respond to these criticisms as they are examining the access to justice implications of the court and tribunals reform programme. Professor Richard Susskind, who was Chair of the Committee that first proposed online courts in 2015, submitted that:

“In relation to all objections to online courts, what surely matters above all else is that the decisions of our courts are fair (substantive justice), that the processes are fair (procedural justice) and the participants feel that they are so. If online courts deliver substantive and procedural justice, I cannot find any countervailing principle of justice that insists we should always favour our traditional system which is accessible to very few and too often disproportionate when it is invoked.” (3 April 2019)

Broader debates aside about how New Zealand should balance these fundamental values, I agree that we must first safeguard substantive justice. If online courts cannot deliver fair outcomes, does providing a platform where a litigant can quickly file a claim really equate to access to justice?

Can online courts deliver actual access to justice?

In short, we don’t yet know. Research on online courts, to date, has been limited to descriptive statistics ie, how many claims are filed, what is the pace of resolution, and user-testing ie, how satisfied were you with the experience. User-testing – in particular – contributes important knowledge as it puts the users at the centre of the design process.

But previous research with Litigants in Person (LiPs) in the traditional court structure (eg, Bridgette Toy-Cronin “Keeping up Appearances: Accessing New Zealand’s Civil Courts as a Litigant in Person” (PhD Thesis, University of Otago, 2015)) suggest that there is good reason to be concerned about whether online courts can actually improve access to justice. We know that LiPs have difficulty identifying what information is relevant and how to construct a claim in a logical and coherent way. In the traditional court model, it is the role of the lawyer to take a litigant’s information and translate it into a claim that can be understood by the court. If online courts do become lawyerless, we need to know that the platform can carry out that critical gatekeeper role. If not, removing lawyers from the process increases the risk that LiPs – with a very valid claim – will file their dispute in a way that the court cannot understand, so it is dismissed at the outset. If that happens, that is not access to justice.

Can we find out whether online courts will deliver access to justice?

The University of Otago Legal Issues Centre is conducting a two-year multi-disciplinary, multi-institutional study, to use empirical methods to try and answer these unanswered questions. The project is supported by co-funding from the New Zealand Law Foundation. We anticipate that New Zealand will not be left out in the cold and will soon follow the rapidly increasing trend towards online courts. Before New Zealand joins the trend, we want to arm policy-makers and the legal profession with the empirical evidence to guide modernisation and reform.

To explore the question of what might be lost or gained by removing lawyers from the online court equation, we are going into the lab. We have set up an experiment where participants help a mock client prepare a claim for a fictional dispute and then file it in an online court. We have already recruited our sample of lay people, which helped us to understand how LiPs will use the platform to formulate a claim.

We now need New Zealand lawyers – with three years post-qualification litigation experience of any kind – to participate in the project. This will allow us to directly compare laypeople’s responses to lawyers – the gold-standard mode of litigating a dispute. Lawyers are busy professionals but we really hope you will recognise the benefit of participating in this project – both to create knowledge that will help guide the future of Aotearoa’s courts and also so you can gain first hand insight by filing a claim using an online portal. Interested lawyers can go to tinyurl.com/FutureCourtsResearch (or email bridget.irvine@otago.ac.nz) for more information, and to sign up to participate.

Dr Bridget Irvine bridget.irvine@otago.act.nz is a Postdoctoral Fellow at the University of Otago’s Legal Issues Centre.