Originally published in The Times
The public will get to love online courts. So predicts Lord Justice Briggs, the author of controversial proposals for the future of civil disputes in which his centrepiece is a new virtual court for settling claims of up to £25,000.
“If this new court takes off and the public gets to like resolving their civil disputes in this less adversarial solutions-based way, who knows to what level of claim it may eventually be extended upwards,” he told the Chartered Institute of Arbitrators.“Make no mistake, this is a wholly new way of dealing with civil disputes, with no limits on its long-term ambitions.”
The idea of keeping as many claims as possible out of court — and de- lawyering the legal process — chimes with government policy. It also has the backing of senior judges, fitting well with overall plans to modernise the justice system. Yet not everyone is a convert. Both the Bar Council and Law Society have warned it may remove access to justice from hundreds of claimants unable or unwilling to use online legal services and, arguably, mean that justice is not done in the absence of legal advice.
Peter Wright, the chairman of the Law Society’s technology group, told the Law Gazette that among many unanswered questions were “whether or not people will be able to access fast- enough internet connections” and what provisions there will be for people without English as a first language.
Meanwhile, the Bar has attacked the Briggs proposals as being a thinly veiled mechanism for removing lawyers from lower-value disputes. Chantal-Aimée Doerries, QC, its chairwoman, says that efforts to modernise the courts were essential. She adds, however: “Any moves towards an online court for claims of up to £25,000 must avoid the risk of entrenching a system of two-tier justice whereby individuals opting to use a ‘lawyer-less’ online court process could easily find themselves in litigation with big organisations that can afford to hire their own legal teams.”
Online courts will not just affect civil disputes; they may extend to many minor criminal offences. Tens of thousands of TV licence-fee evaders could be allowed to pay online, sparing them a court appearance. Last month, the lord chief justice and the lord chancellor, Liz Truss, outlined their latest thinking on modernising the justice system. Ms Truss said: “We live in a society where you can apply for a mortgage or a job online, you can do your weekly shop from your home, plan holidays, weddings and parties on the internet. It’s high time our courts caught up.
“I want a justice system that works for everyone, that better protects the vulnerable, that offers swifter — but no less sure — justice and frees up our judiciary and lawyers from the myriad inefficiencies that plague their working lives.”
Crimes that could be dealt with online include speeding, fare dodging, driving without insurance and fly tipping. If people dispute a charge and want to plead “not guilty”, they would have to go to court, as now.
Then there is divorce. Sir James Munby, president of the family division, is keen to move next year to online divorce. Resolution, the association of family lawyers, welcomes moves to reduce paperwork and bring the divorce process into the 21st century — but cautions against “excluding some of the most vulnerable in our society who do not have access to the internet” and cutting out legal advice from fraught decisions over children or money.
Its chairman, Nigel Shepherd, says: “The administrative side of the divorce process is relatively straightforward: it is the arrangements regarding finances and children that often require more support. Technology can play an important role in helping people access this support; but it is essential people are able to access independent, tailored legal advice.”
Some will dismiss such concerns as lawyers guarding their patch, but non-lawyers say the same. Phil Bowen, the director of the Centre for Justice Innovation, welcomes the ideas as “radical and inevitable”, but asks: what does online justice mean without legal representation? Online guidance, procedures and language must be clear to ensure fairness, he says. In criminal cases, people must be made aware of the consequences of a guilty plea, just as if a lawyer were telling them. And does moving crimes online mean they are less serious than those that go to court?
There is a risk that individuals who find themselves before a computer rather than the bench will plead guilty because it is preferable to going to court; or settle a claim or divorce arrangements even if it is not in their interests. Reformers, it seems, have yet to work out how to square the circle of keeping the lawyers out of court while ensuring that justice is not thrown out too.