Briggs lays out vision for lawyer-free online courts

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Briggs: final report by end of July

Lord Justice Briggs has set out radical plans to create an online court (OC), which could become the compulsory starting point for money claims worth up to £25,000, and which would be designed “for use by litigants without lawyers”.

Briggs LJ said there was a “clear and pressing need” for the new court, with no “default assumption” that claims would need to be settled at trial, and with conciliation and management by ‘case officers’.

The call was the standout feature of the interim report of his Civil Courts Structure Review, which was commissioned by the Lord Chief Justice and the Master of the Rolls in July 2015 to coincide with a programme for reform of the courts by Her Majesty’s Courts and Tribunals Service, to which Chancellor George Osborne committed investment in the Autumn Statement.

The report also considered other elements of the civil justice system (see below).

Briggs LJ said the development of an OC was “the single most radical and important structural change” with which he was concerned.

“It provides the opportunity to use modern IT to create for the first time a court which will enable civil disputes of modest value and complexity to be justly resolved without the incurring of the disproportionate cost of legal representation.

“In my view it offers the best available prospect of providing access to justice for people and small businesses of ordinary financial resources.”

Briggs LJ said the concept of an online court had existed in the public domain in England and Wales for less than a year, since the report of the online dispute resolution advisory group, chaired by Professor Richard Susskind.

“The ambition of the reform programme is that the whole of the civil courts should be digitised,” he said. “Literally speaking, the civil courts of England and Wales will consist of one or more online courts, probably accessed through a common online portal.”

However, Briggs LJ said the OC would be “no mere digitisation of an existing court”, but “something entirely new”.

He went on: “In fact the true distinguishing feature of the OC is that it would be the first court ever to be designed in this country, from start to finish, for use by litigants without lawyers.

“It would be tempting to capture this essential distinguishing feature by calling it a people’s court, were it not for the unfortunate historical connotations which would inevitably attach to that phrase.”

Briggs LJ said it was likely that the OC would begin by confining itself to money claims, and would adopt a variant of the three-tier structure proposed by Professor Susskind:

• Stage 1 would consist of a “mainly automated process by which litigants are assisted in identifying their case (or defence) online in terms sufficiently well ordered to be suitable to be understood by their opponents and resolved by the court, and required to upload (i.e. place online) the documents and other evidence which the court will need for the purpose of resolution”.
• Stage 2 would involve a mix of conciliation and case management, mainly by a case officer, conducted partly online, partly by telephone, but probably not face-to-face.
• Stage 3 would consist of determination by judges, in practice district judges or deputy district judges, either on the documents, on the telephone, by video or at face-to-face hearings, but with no default assumption that there must be a traditional trial.

Briggs LJ said that among the advantages in the OC being a “separate court with separate rules”, would be that it would “insulate the OC from all the lawyerish and purely adversarial aspects of the culture of the civil courts”.

He said the OC would “need software and structures for the provision of help to those challenged with computers”, and “in its early years in particular, it is likely that the electronic structure will need intense maintenance, development and care while it beds down and becomes established”.

Briggs LJ said the OC would also need a “self-standing set of rules designed from the outset to be understood by litigants without lawyers”, and which would best be drafted not by the Civil Procedure Rules Committee but by employed and voluntary members of advice and assistance agencies working with litigants in person.

Lord Justice Briggs said that, in his view, rather than starting with small claims, a limit of £25,000 would be a “better steady-state objective”, even if £10,000 was the temporary initial limit.

He said there was a “wide measure of agreement” that possession claims, claims for non-monetary relief such as injunctions, class claims and claims involving children should not be handled by the OC.

On the subject of personal injury claims, Briggs LJ said his provisional view was that they should also be excluded, unless the small claims limit was raised to £5,000 so that claims under it could be included or claimants wanted to use the OC.

He said it was “inevitable” that the “long-term objective of creating a court suitable for litigation without lawyers” would only be achieved if the OC was compulsory, though he said there was also an argument for a “proving period”.

Briggs LJ added that “some form of telephone helpline” would also be needed to help those who could not access the OC, as part of an assisted digital service.

The review did not just look at online courts. Other key points were:

• The transfer some of judges’ more routine and non-contentious work to case officers supervised by judges, with a right to have their decisions reconsidered by a judge. This work would exclude “the final determination of contests as to substantial rights and duties”, and approval of settlements of claims on behalf of minors and other protected parties.
• There should be a stronger concentration of civil expertise among circuit and district judges, while all civil work with a regional connection should be tried in the regions, regardless of value, subject to very limited specialist exceptions such as patents.
  This would mean increasing resources for some of the main regional trial centres so as to make them “true competitors with London for the management and trial of large and complex civil cases”.
  However, his provisional conclusion was that the case to unify the High Court and county court had not been made out. Instead, Briggs LJ wanted to explore specific options for moving the current boundaries between the two with a view to increasing the county court’s share of the overall civil workload.
  “A way must be found to prevent the permanent loss of civil hours to meet the needs of urgent family cases.”
  Briggs LJ will consider the future of the divisions in the next stage of his review, and encouraged the process of reducing the number of district registries.
• Easing the workload of the Court of Appeal was another “urgent priority”, Briggs LJ said, but one with no easy answers. Among the questions he asked were the value of having a right to renew an application for permission to appeal orally when it has been refused on paper, whether the thresholds for obtaining permission to appeal should be raised, and whether the court’s focus should be mainly on second appeals.
• On enforcement, the judge suggested creating a unified service for all the civil courts.
• On boundaries, he raised the possibility of bringing the employment tribunal and Employment Appeal Tribunal inside the civil court system.

The provisional plan is to complete the review by 31 July 2016. Consultation responses are requested by the end of February, so that the judge can conduct meetings thereafter, “leaving space to think and write in June and July”.