REUTERS | Kai Pfaffenbach

E-justice: trials and tribulations

The world is becoming increasingly e-centric. Many of us struggle to remember a time when we could not shop and bank online, communicate via social media, or undertake a range of “life admin” tasks at the click of a mouse or swipe of a screen. Against this backdrop, it is perhaps unsurprising that a growing number of jurisdictions worldwide are now exploring electronic case management (ECM), online dispute resolution (ODR) and other e-justice initiatives.

These are a few of the recent developments in this area:

  • British Columbia’s Civil Resolution Tribunal (CRT) became operational for strata property disputes in July 2016, and is due to start accepting small claims this year.
  • In  the Netherlands, the Ministry of Security and Justice is collaborating with the judiciary to digitise civil and administrative proceedings through the KEI programme.
  • In Victoria, Australia, the government has released the Department of Justice and Regulation’s Access to Justice Review, which recommends the development and implementation of a new online system for small civil claims.
  • Here in England and Wales, we await further details of the Online Court (OC), for which there is no direct precedent (and which will undoubtedly attract considerable attention at home and abroad).

However, while some may view e-justice as the logical extension of an e-based culture, it is fair to say that the concept is not entirely straightforward. In this post, I consider just a few of the many issues and challenges involved in taking justice online.

Data security and system reliability

We all accept a degree of risk when carrying out transactions online. While the padlock symbol, firewalls, anti-spyware and anti-virus programs may provide us with some reassurance, hacking and other security breaches are a reality of 21st century life. One of the obvious challenges for any e-justice system is to minimise the risk of data compromise (completely eradicating the risk would be impossible). Robust encryption is a must, or the integrity and credibility of the system is immediately called into question.

Likewise, system stability and reliability is essential. One of the “selling points” of e-justice (indeed, of many e-services) is that users can submit or review information and documentation at a time that suits them. If a “service unavailable” banner appears too regularly, customer dissatisfaction will surely follow.

Transparency and fairness

There is an element of tension between the visibility of justice when dispensed in open court, and the concept of e-justice, which is likely to involve increased use of written submissions and fewer face-to-face hearings.

Litigants with claims that are relatively modest in value, but have considerable personal significance (financial or practical) may well be attracted by a system offering speed, simplicity and economy – even if that involves a departure from established norms. Having their “day in court” (in the conventional sense) is probably not essential; in fact, they may find the experience stressful and daunting. Of course, in jurisdictions where paper determination is already prevalent, the absence of a face-to-face adversarial hearing is unlikely to cause great consternation in any event.

For some people, though, not only must justice be done; it must also (literally) be seen to be done. They will be keen to maintain visibility of the person who sits in judgment on their dispute. There are, course, shades on a spectrum – giving routine case management directions on paper is clearly very different to making a final determination on the merits. In the former case, the necessity and proportionality of a face-to-face hearing is highly debatable. Nonetheless, the question arises as to how an online system may be able to provide its users with judicial “face time”, other than by resorting to a traditional court-room hearing.

Balancing tradition and innovation

Can the use of video and audio conferencing tools help bridge the gap between conventional court processes and online litigation or dispute resolution? Many courts already use this technology (for instance, to link a judge and parties in one location with a witness elsewhere, or to enable two remotely located parties to attend a hearing). It can be particularly helpful where a court serves a wide geographical area (such as the District Court in Western Australia).

Of course, video-conferencing is a pragmatic rather than perfect process. It cannot wholly replicate a traditional court hearing, but does enable the parties to see their tribunal (and vice versa), albeit remotely. One potential disadvantage of video-link or comparable web-based technologies is that time lags or disruptions in connectivity may make cross-examination more difficult or submissions less effective. In addition, the opportunity to observe the demeanour of witnesses may be impaired, though not usually to such a degree that it would substantially affect the judge’s ability to assess the evidence.

It is certainly possible to conduct a telephone hearing when the line is clear, the issues are procedural (and fairly straightforward), and all relevant documentation has been circulated to the court and the parties in advance. However, I think that most litigants and lawyers would agree that “trial by telephone” would be both impractical and undesirable in cases involving cross-examination of witnesses, or complex legal or factual issues.

An ODR system or online court may, of course, combine various forms of conciliation or decision-making. In fact, this is probably inevitable, to ensure that fairness is not sacrificed for expediency. Taking the CRT and the OC (as envisaged by Briggs LJ) as examples:

  • Where the CRT is adjudicating a dispute, section 39 of the Civil Resolution Tribunal Act 2012 (CRT Act) permits it to conduct a hearing in writing, by telephone, video-conference or email (or through use of other electronic communication tools). (The CRT website indicates that the tribunal usually considers the parties’ arguments and evidence in writing.)
  • However, the CRT has a residual discretion to hold a face-to-face hearing, where this is necessary in the interests of justice, due to the nature of the dispute or “extraordinary circumstances” (section 39, CRT Act).
  • In the OC, Briggs LJ recommends that “Determination of all disputes about litigants’ substantive rights and duties, which cannot be settled at Stage 2, should be made by judges (usually District Judges or their Deputies) at Stage 3, by whichever of a traditional trial, a video hearing, a telephone hearing or on the documents (or by some combination of those) is best suited to the individual case, and as directed by the Case Officer, subject to the parties’ right to have the mode of determination reconsidered by a judge” (Civil Courts Structure Review (CCSR) final report, Recommendation 24).

Drawing the jurisdictional line

The parameters of an ODR or online court system should assist in ensuring that cases for which such a process would, or may, be unsuitable do not enter it in the first place. However, having a “failsafe mechanism” for transferring cases into the conventional court system where necessary seems essential, as there are always cases which turn out to be more complicated than first envisaged, or which (despite their modest value) may raise especially novel or important points of principle.

To take the British Columbia model as an example:

  • The CRT’s strata property dispute jurisdiction excludes matters that affect land itself (such as ordering the sale of a strata lot) or matters relating to a significant issue in a strata complex (such as applications to wind up a strata corporation). (CRT website and Section 3.6 of the CRT Act.)
  • In addition, the CRT may refuse to resolve a dispute that is within jurisdiction for various reasons, including where it considers that issues in a claim or dispute are too complex or impractical for the tribunal to resolve (Section 11 of the CRT Act).
  • Likewise, the British Columbia Supreme Court may order that that the CRT shall not resolve a strata property claim, including where it is “not in the interests of justice and fairness” for it to do so. This might be the case where, for example, an issue raised by the claim or dispute is so important that it would benefit from resolution by the Supreme Court to establish a precedent. (Section 12.3 of the CRT Act.)

Turning to the OC:

  • Briggs LJ envisages that (initially, at least) the OC will deal with money claims only, up to a value of £25,000. He has highlighted that, for certain categories of case (such as possession claims), face-to-face determination is regarded as being necessary, so it is proposed that these cases will be excluded from the OC altogether (CCSR final report, paragraph 6.79).
  • Briggs LJ has referred to a firm agreement in principle among consultees that “…however the boundaries are drawn, there will have to be, in effect, a permeable membrane along them, through which appropriate individual cases may be passed both out of, and into, the OC” (CCSR interim report, paragraph 6.34). This issue has been picked up in his final report, which states that “limited amendment to the CPR will be needed to accommodate cases transferred from the Online Court on grounds of complexity or public importance (CCSR final report, Recommendation 14).”

Accessibility, user-friendliness and plugging the “justice gap”

Many people are now accustomed to completing forms and documents online, and feel comfortable using online help facilities. However, it is right to remember that not everyone owns a computer and has internet access.

For ECM, ODR and online courts to work, it is essential that suitable IT facilities are made publicly available for those who need them. Steps to achieve this might include installing computer terminals at courts, libraries or other public venues, such as civic halls and leisure centres. Ensuring that the relevant websites and online portals can be accessed not only by computer but also via mobile devices (as is the case with the CRT system) may also assist in widening the accessibility of e-justice.

However, physical access to the system is not enough on its own; for e-justice to be truly accessible and navigable without the need to instruct a lawyer, it needs to be backed by sound technical and practical help and support – and that, in turn, requires considerable thought and financial investment. Certain sectors of a community, such as the elderly, disabled, those with learning difficulties and those affected by language barriers, are likely to find e-justice particularly challenging. However “all-singing, all-dancing” an online system may be, ultimately it stands or falls on its user-friendliness.

With many charities and advice agencies already overstretched, are there other potential sources of assistance? Might law students, law graduates, trainee solicitors and pupil barristers provide pro bono assistance to guide less confident litigants through the process of submitting a claim or dispute online? As some readers will be aware, when Sir Terence Etherton MR gave the Law Works Annual Pro Bono Awards Lecture 2016, he suggested that law graduates who had completed their academic and vocational training might become “trainees” with university or pro bono advice centres, providing legal advice and assistance to litigants in person, subject to lawyer supervision. It is fair to say that this idea has met with mixed reactions. However, it certainly offers food for thought as a possible foil to the rise of unqualified, uninsured and unregulated McKenzie friends.

Letting the public in

When an online court is being developed, important questions are likely to arise as to how to ensure that the public can watch hearings and access judgments when a case is not being determined at a conventional face-to-face court hearing. It will be interesting to see how these issues are factored into the design of the OC.

Giving the Draper Lecture 2016 (titled “The Rise of the Cyber Judge“), Fulford LJ mentioned the possibility of having viewing centres in local authority and court buildings, where members of the public could ask to be shown the content of any hearing that does not take place in open court. I am not sure precisely what Fulford LJ had in mind, but to me, this sounds similar to an “on demand” digital TV and audio service. That could provide public access, but not on a wholly contemporaneous basis.

Another conundrum is how judgments emanating from an e-justice system may be reported and disseminated. Clearly, if a case started in the OC culminates in a conventional court hearing, no difficulty will arise. However, many practitioners will be familiar with the summaries of extempore judgments which are prepared by law reporters and often published very quickly after the hearing. They will also be aware of the relative ease with which law reporters are currently able to “dip in and out” of open court hearings, to help them identify cases of general interest and importance. I wonder how this can be replicated within the confines of e-justice, and it may become an increasingly significant issue if the value and scope of claims destined for the OC increases.

Watch this space

Work continues in jurisdictions such as the Netherlands and Canada, and if all goes to plan, we can expect our OC to be operating by April 2020. While debate continues as to the pros and cons of taking justice online, perhaps in ten years’ time we will all be wondering what the fuss was about. After all, it was once said that the internet would never catch on…

Practical Law Dispute Resolution Natalie Stopps

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