David Willink: Barrister, Lamb Chambers

This feature is part our #LondonCalling series, highlighting perspectives from across the pond

The future is coming to the civil courts in England and Wales.

Actually, it’s been coming for a long time. It’s 16 years since I was involved in developing the e-business strategy for the courts here. The stated government policy then was for all public services to be available online by 2005! Despite notable successes in some public sector areas – dealing with HM Revenue and Customs online is, genuinely, a breeze, as is taxing your car – the civil justice system is still very largely in the age of the dead tree.

So – what’s happening now to give the agenda a much-needed shove? There’s a three-fold impetus:

  • austerity and public spending cuts (of up to 25% in justice spending), requiring a root-and-branch questioning of long-held and much-treasured assumptions;
  • a more agile tech sector, with far more developed tools at its disposal; and
  • crucially – a one-off fund of £700m to modernise the administration of justice.

Last year, the government began work on a three-pronged plan to modernise the administration of justice:

  • digitisation: using IT not just in the issue and management of litigation but in its resolution. The aim is “digital by design and default”;
  • dematerialisation: reducing the reliance on court buildings; and
  • devolution: allocating judicial tasks to non-judicial “case officers”.

I’ll be focusing on the first of these. Before I dive in to look at what’s proposed, I want to use this article to outline the low baseline we are currently at. In part 2, I’ll take apart some of the proposals that are now on the table. Finally, in part 3, I’ll try to take a step back and consider what it all means – for legal professionals and litigants.

At the most elevated end of our civil litigation system stands the High Court; and (for many) its pinnacle is the Rolls Building. Nothing to do with Rolls Royce, although you may be forgiven for thinking so. It is the world’s largest court complex for commercial, business and property disputes, housing the Chancery Division (which includes the Companies Court, the Bankruptcy Court, the Patent Court and the Intellectual Property Enterprise Court); the Admiralty and Commercial Courts; and the Technology & Construction Court. It’s the centre of much of the international workload of the High Court. (A recent study reported that of all Commercial Court cases in London, 80% had at least one foreign party; in almost 50%, all parties were foreign.)

Since late 2015, the Rolls Building has been operating a system known as CE File, which allows for not only the online initiation of claims but electronic filing of case documents. Currently voluntary, it is expected to become compulsory within about six months. But the system is a long way from what would be required for paperless trials. Case-by-case provision for paperless trials, including live transcripts, can be made (as in the recent Berezovsky/Abramovich, where it was estimated that the cost of producing just one paper copy of the 280-volume trial bundle ran to £26,000); but it is paid for by the parties in that litigation.

If that’s at the top end, what’s it going to be like at the bottom?
Well, the bulk issuing of simple and low-value money claims – by, for example, utility companies – is now a fully-automated process. The current annual workload is around 750,000 and rising; and fully 95% of these are undefended, leading to the automated award of default judgment with no judicial intervention at all. Individual money claims can also be issued online, through a basic web portal; of its around 180,000 claims annually, 80% are issued by litigants-in-person. The average claim size is only £1,665, and the median is only £664. There is also an online facility to issue claims for the possession of residential property, if the only grounds are rent or mortgage arrears. The use of these are incentivised by lower court fees.

All of them, however, are simply gateways into a paper-based system: the first step of the process is the bulk printing of the claim and its service, by post, on the defendant. Thereafter (with very few exceptions) the claim proceeds as it would have done 20, or even 200 years ago – relying on the manual handling of paper files, albeit with a computerised case tracking and management system.
And what happens when you get to court? It’s still a novelty to find judges preparing orders on a laptop, and rarer still to find them keeping trial notes in anything other than standard-issue red notebooks. More often, orders will be written by hand to be typed by court staff, or – increasingly, in those cases where parties are legally represented – judges will shrug, complain about the lack of administrative backup and ask counsel to agree the terms of the order and email it direct to the judge.

Other IT systems have been developed and implemented piecemeal: a judicial intranet here, an online system to declare yourself bankrupt there, and an online Traffic Penalty Tribunal somewhere else. This is not the brave new world we foresaw 15 years ago. Something, as any politician will tell you, must be done.

Now – no cheating, no googling for the answers. Put yourself in the position of the government and the senior judges; what would you see as the most pressing problems for a paper-bound civil justice system? And what would you do to deal with them – as quickly, efficiently and effectively as possible? In part 2, we’ll see how you got on.