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Digital courts:


Matt Wightman Partner,


Aberdein Considine mwightman@acandco.com


Reforms to the justice system are proposed in a recent Ministry of Justice white paper and supplementary joint statement. The statement refers to ‘accessing justice digitally’. So, what kind of digital system should we expect?


The final report of Lord Justice Briggs’ Civil Courts Structure contains the recommendations for an online court for all disputes with a monetary value of £25,000 or less. The recommended delivery date of the online court is 2020, so what is the idea? Money claims constitute 80% of the civil- court business in England and Wales, and 83% of those are uncontested. Around 437,000 new cases were issued on Money Claims Online in the first quarter of this year. The idea is that automating claims will actually make justice easier to understand, quicker and less expensive, and mean that lawyers, judges and court space can be better used.


Lord Justice Briggs’ views


From LJ Brigg’s recommendations, the online court claims would follow three stages:  Stage 1 – the potential litigant answers basic questions about their case, enabling them to enter a digital triage process, in which some advice is given about ‘their rights’ and the options open to them. In some cases, the advice given will be to consult a lawyer, however the idea is that initial advice, at the point of entry, be provided by the system in a process LJ Briggs calls ‘knowledge engineering’. Litigants upload key documents and evidence.  Stage 2 – conciliation and case management by a court case officer (by e-mail or telephone).


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 Stage 3 – determination by a district judge (or deputy) at a hearing, either by telephone, video, or in person. In person hearings ‘will only be needed when there is no other alternative’, which raises the issue that, although the online court is orientated towards litigants in person, LJ Briggs himself reported that litigants in person dislike telephone hearings preferring to ‘have their day in court’.


LJ Briggs’ recommends an online court with its own separate rules and new rules committee. Lawyers advising on lower- value cases will need to understand another set of rules.


www.CCRMagazine.co.uk


Will the system replace lawyers? LJ Briggs firmly supports built-in opportunities to obtain bespoke legal advice from a lawyer, and recommends that the costs of such advice be ‘an element of fixed recoverable costs’.


The cause for concern is that independent legal advice would not be sought at possibly the most important stage, prior to commencement of a claim.


The risk associated with ‘knowledge engineering’ is that if the system is flawed, or the claim does not fit the standard process, then litigants may well receive incorrect legal advice about their rights of action, leading to detrimental consequences.


March 2017


LJ Briggs called for feedback on this point, as the alternative would be for the online court to be a branch of the county court, governed by the Civil Procedure Rules. In relation to pre-action, LJ Briggs recommends ‘a simple exchange of correspondence’ rather than the erection of a pre-action procedure.


The cause for concern is that independent legal advice would not be sought at possibly the most important stage, prior to commencement of a claim


Provisions for costs shifting should be that already used in the small-claims track. In regards to appeal, permission should be obtained by a circuit judge where the decision of the online court is made by a district judge.


The appeal can be on a matter of law or on factual findings or both. A second appeal should be made in the court of appeal. There would be new rules governing appeals and the current Civil Procedure Rules would not apply.


The question of how cases passing from the Online Court to the county court would be regulated remains open.


we must get it right first time


An online court for money claims up to a value of £25,000 is being proposed in England and Wales, but the consequences of getting the system wrong could be severe for lenders


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