Online court: pilots to go ahead without primarly legislation
A 28-month pilot of the Online Court is to start next month, with HM Courts and Tribunal Service (HMCTS) providing face-to-face assistance to the half of people signed up to it who are expected to need help with filling in forms.
According to newly published papers from May’s meeting of the Civil Procedure Rule Committee (CPRC), the “pilot for new digital procedure for money claims under £10,000” will run from 31 July 2017 to 30 November 2019.
The pilot – the first in a series planned over the next three years – will begin in a “private beta” phase, in which the service will be available to eligible users via invitation only. In January 2018 this phase will transition to “public beta” – in which it will be opened up to all court users with an appropriate claim.
Altogether, the papers revealed, some 2,000 claimants would be invited to use the service. Numbers would be increased slowly from an initial 40 in the first fortnight, “culminating in 200 claims being issued per week during the last few weeks of the pilot”.
Defendants, upon receiving the notice of claim, will be invited to log into the online service to view the claim. They will be able to call a helpdesk to request assistance if unable to access the digital service.
Legislation giving a statutory underpinning to the online court was in the Prison and Courts Bill, which was dropped when the general election was called in April. This part has been reintroduced as a standalone Courts Bill, although the CPRC paper made clear that piloting the OC would go ahead “within the context of the CPR”.
It explained: “The [OC] work remains a key part of the court modernisation programme and, therefore, we are continuing with this work notwithstanding the current uncertainty regarding the future of the primary legislation.”
The paper revealed that the pilot would proceed on the assumption that 31% of claimants were ‘digital self servers’ – that is, comfortable with online forms – but 52% would require assistance and 17% would be ‘digitally excluded’. Among defendants, these figures were expected to be, respectively, 25%, 52%, and 23%.
The digitally excluded would be referred to the existing paper service or offered face-face-support. Where assistance was required, HMCTS expected to have six face-to-face pilots running by September. It was currently actively conducting a procurement exercise to “source a partner organisation”.
Meanwhile, giving the Lord Slynn memorial lecture last week, the Master of the Rolls (MR), Sir Terence Etherton, said that what he called the “online solutions court” – the judiciary’s preferred name for the OC – should be seen as “a template for securing now and over time in the future the critical object of greater access to justice”.
The court would operate in a “problem-solving” way, he explained. “That has not been the traditional approach, even when active case management is taken account of. It will be problem-solving in the sense that the Online Court through stage 1 and 2 of the process will help the parties find the appropriate solution to their dispute.
“A problem-solving purpose is the next step in the evolution of the Overriding Objective, which lies at the heart of modern case management.”
He said pilot project and prototypes were examples of the judiciary and HMCTS “learning from the past” experience of public IT projects, which he admitted was “not auspicious”.
Sir Terence urged caution in drawing conclusions from the recent failure of the pioneering Dutch online dispute resolution (ODR) system, the Rechtwijzer.
There was, he said, “a fundamental difference” between it and the OC. “Our approach is to develop a court, which incorporates ODR into its processes, rather than to develop an ODR platform which sits outside of the court system.
“The Rechtwijzer’s failure should properly be seen as more a consequence of individuals preferring the courts to resolve their disputes than their rejection of online processes.”
Talking through other design issues, he explained that the simplified procedural code would be built into the way the OC operated.
“Litigants-in-person will not be subject to any disadvantage through a lack of knowledge of the rules. The online platform will guide them through a rule-following process. Where specific guidance is needed, online guidance or guidance from case officers will be available.”
The MR also offered assurances that the principle of open justice would be maintained and even possibly enhanced.
“Under consideration are viewing booths for the public to gain access to proceedings in the online court,” he said.
“Moreover, depending on cost and practicalities, physical hearings may become capable of live streaming, particularly at the appellate level of the Court of Appeal. The ability to observe justice online and as it happens should not be reserved to the UK Supreme Court.
“Ideally, the delivery of justice should be as open to scrutiny as parliamentary debate.”
The judge also had reassuring words for lawyers: “There will continue to be a valuable contribution which lawyers, whether solicitors or barristers, can make to the resolution of disputes and a fair adjudicative process.
“They will no doubt continue to play an important role in many cases in early advice on the merits of a claim and a defence and on ways of efficiently and effectively resolving it, whether by ADR or in court; and, if a case proceeds to disposal by a judge, they will undoubtedly continue to play a crucial role on behalf of their clients.
“It is in recognition of that reality that there may be provision for limited costs shifting (on a fixed cost basis).”
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