Virtual Trials: Court on camera

In his first speech as Lord Chancellor in June, Michael Gove MP appeared to be seeking to build bridges with the legal profession following cuts implemented by Justice Secretary Chris Grayling MP via the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Relationships between the ministry and stakeholders may be warmer, but it is still clear this government remains committed to further significant change for civil disputes.

In mid-July, Gove told MPs that making sure courts work more efficiently was among his top priorities, along with Human Rights Act reform. Measures likely to be taken by the end of this parliament – 2020 – include: closing some court facilities in England and Wales; increasing fees for starting claims in court and for making applications; implementing recommendations for HM Online Court; and extending fixed legal costs to areas such as clinical negligence and industrial deafness.

Efficiency reforms to family justice began last year, with the single family court and compulsory mediation information. For criminal justice, Lord Justice Leveson presented 56 recommendations in January, proposing wider usage of internet-based video conferencing and hearings. The following month, the Civil Justice Council advised that HM Online Court should be set up.

Gove’s speech in June linked all these strands and referred to the “huge opportunity to take many of these disputes online [...] using plain English rather than legalese, replacing paper forms with simple questions online, and automating much of the administrative process”.

Few would object to these goals for further efficiencies, but securing the funding necessary to achieve them could be more awkward. The spending round due in November will be tough: departments, including the Ministry of Justice, have been asked to model real-terms saving of 25% and 40% by 2020. Nevertheless, three early themes stand out from the “huge opportunity” for efficiency: access to justice, investment and systems integration.

Access to justice
Citizens, businesses, injured people and insured policyholders will engage with a civil dispute system that is easy for them to reach. Proposed court closures suggest access to justice will shift from physical presence in court premises or lawyers’ offices towards online service, delivery via video conferencing and other applications. Lord Justice Briggs’ review of the structure of civil courts in England and Wales – his interim report is due by the end of 2015 – could have a key role in scene-setting.

Investment
Efficient dispute resolution services need investment. Funds for delivering HMOC would have to be prioritised by the MoJ, possibly allocated from savings made as ‘real’ courts close. Estimated additional funding from increased court fees will not necessarily reach levels assumed by the ministry as some stakeholders may prefer arbitrations or mediations to paying the higher charges.

Systems integration
Delivery of anything like a fully-fledged online court would have to be supported by robust and properly tested technology. This is a serious challenge for courts and users. Recent measures – such as the Claims Portal for injury cases and the Medco platform for whiplash reports – have experienced ‘teething troubles’ from which we might all learn. While cooperation across the industry on these sorts of projects has improved, the pace of change may need to accelerate.

In reality, we are still some way from virtual dispute resolution being the norm in civil cases. But a process of change has clearly begun, driven firmly by pressures on the MoJ’s budget, the general trend towards online public services, and (probably) the relative success of the Claims Portal in its limited fields.

Arguably, efficiency reforms to civil process, structures and costs may be more fundamental than any of the issues addressed by the last parliament via Laspo. Early implementation of HMOC and the likely outputs of the Briggs review should provide more shape to this ongoing debate. Natalie Ceeney, chief executive of the Courts and Tribunal Service, said on 23 September: “What we need to do is far more radical than adding a few new screens and digitalising today’s processes. We need to fundamentally rethink our model for the 21st century.”

Alistair Kinley
Director of policy and government affairs at BLM