Beverley Barton, one of the editors in the Practical Law Dispute Resolution team, was delighted to have the opportunity to catch up with Susan Acland-Hood, Chief Executive of Her Majesty’s Courts and Tribunals Service.
In Part One of a series of blogs, Susan talked about some of the challenges she faces in her role, and the skills that equip her for the task. In Part Two, she discussed some of her impressions of the civil justice system, and the role it has to play in society as a whole. In Part Three, she provides an update on the courts modernisation programme.
What do you see as the greatest challenges facing civil justice currently: both from a HM Courts and Tribunals Service (HMCTS) perspective and from the perspective of a court or tribunal user wanting access to justice?
Perhaps talking about civil justice specifically, I think it’s sometimes been seen as a sort of Cinderella part of the court service. I quite often get told by civil lawyers that they see crime as getting everything first, and I’m acutely conscious of that. We know, for example, that the criminal courts got Wi-Fi and screens first; but we’re now rolling out to all of civil, family and tribunals and should be seeing screens appearing in courts right now.
We’re working really hard to try and get to a place where – and I think it comes back to the points we were making earlier about the economic importance of the civil justice system – we think differently and put civil justice much higher up in our priorities, and give it much more time and attention. At the moment it’s probably the bit of our system where administration is most unreformed and we are still most paper heavy. But we’re changing that.
The other challenges I see for court users are around the speed and convenience of accessing the system. We don’t do too badly on meeting targets for timeliness on civil justice cases, but that is partly because targets accept that many cases are going to take what I think to the average citizen seems like quite a long time. The question for me is about possibly setting a different type of benchmark, both on speed and on quality of service. Again, it is about the three fundamental principles of being just, proportionate and accessible. I think that point about proportionality is really important in the civil justice system. We do the vast majority of our business through face to face hearings in person. There are lots of times when it is the right way to do business. But I do question whether it is the right automatic default for everything, which is how it feels at the moment. My view is that we should be offering more alternative routes in the system, which is where the online court comes in. It’s about knowing what the most important thing for the user is – in some cases, what people want more than anything – more than a physical day in court – is a swift resolution to their problem.
It is an interesting one. In the context of his Civil Courts Structure Review, Briggs LJ started with the idea of online triage at the beginning, trying to encourage people to mediate. Interestingly he moved away from the idea of it being only online, recognising that quite a lot of people need to feel that there is somebody listening to them, and that they are also being given a little bit of a steer, because it’s all so unfamiliar to them.
I don’t think you’d ever just want to be online, but you do want there to be different routes available for different things. So, entirely online feels wrong, but actually entirely physical hearings are probably also wrong. We talk about horses for courses. At the moment we’ve got lots of horses but almost only one course – the physical hearing. We could do with a few more courses, so we can fit the right horses to them.
There are now a number of initiatives: for example the Shorter Trials Pilot Scheme (STS) and the Flexible Trials Pilot Scheme (FTS) – and there’s a fixed costs pilot scheme expected to start soon. The problem is getting people to actually use them. So that leads to the dilemma as to whether you make these pilots mandatory, and how do you go about achieving change? Changing lawyers’ behaviour and changing their practice can undoubtedly be challenging. For example, we’ve had the disclosure menu option since 2013 now, but, in practice, it has not been widely used.
But our telephone mediation service, for example, is massively over-subscribed. I think there is an interesting challenge in how you can persuade people to try new things out and give them enough of a sense of what something different might be like in practice, so that they can really see and feel the advantages (and disadvantages). I think mandation goes too far, but there will be moments where we may want to do some strong encouragement to test and try new things.
You could reduce the court fee for someone using the STS, for example. I think that is something that would really increase take up!
As you probably know, there is currently a piece of work going on regarding fees policy. It would be reasonable to say, as we think about different modes, that we need to make sure that whatever our fee scheme is, it fits with new ways of doing things.
It is suggested that a lot of people have been really put off bringing cases because of the new £10,000 issue fee. I am sure that a reduced court fee to reflect cases with a more streamlined approach, which would take up less court time, with a much shorter trial, would be positively received.
We need to be careful about not pushing people down particular routes through setting a fee that isn’t appropriate for their case. But I think those are things we need to think about really carefully as we look at the structure and the system in the future.
Could you provide a brief summary of the current key initiatives for civil justice, and what progress has been made, including what is happening with the online court? Sometimes, it feels as if there is a lot going on behind the scenes, but that things are perhaps not as transparent as they might be.
I think the work on the civil money claims project, which is really the beginning of the online court work, is the most significant thing that we are doing in the civil justice space at the moment. We’ve also got a possession claims project, which will begin in 2018, and we are talking to stakeholders about that at the moment.
I’ll talk a bit about what we are doing on the civil money claims project. This flows quite clearly from Briggs LJ’s Civil Courts Structure Review. We are working on it extremely closely with the judiciary and with other stakeholders. The aim is to develop a simple, streamlined, new court procedure for money claims of a value below £25,000, with a digital pathway. We will start, broadly speaking, in accordance with current procedural structures, but then look to streamline processes and procedures. We have started to do quite a lot of work with users. We already have an alpha version of a system that focuses on issue and response. It’s the first step in the system. It begins with prompts to check that the claimants have tried to contact the other side, and had a conversation with them about it. It allows claimants to enter details of the case, and notified defendants, and asks for a response. It also offers the opportunity for both sides to make suggestions about how the matter might be resolved; and if they agree, to draw up an agreement between them which becomes legally binding when agreed.
We’ve got a set of screens that you can walk through in a number of different ways, which we’re testing quite intensively now with users and legal professionals. And we have already held events – and will hold more (if you are interested in hosting or being part of an event, contact the project team at email@example.com), where we will give a demonstration so that people have the opportunity to see how it works. As I said, the first “chunk” we are testing covers the issue, response and what happens if you want to reach agreement between yourselves. If you don’t, the first version of the system will point you back into the current system. We will then build further “chunks” that will progressively serve more stages of the process – so, generating structured information that goes either into a physical hearing or, if the judge in the case thinks it’s appropriate, could be decided in a “Briggs LJ style” continuous online hearing. It’s the beginning of something, and we are starting relatively small and carefully; but it is a very interesting beginning and I’d encourage readers to get involved and have a look at where we’ve got to so far.
What’s the hoped for timing on that?
One of the principles we are using for the reform programme is that we develop in an agile way. You develop things in small chunks and you test them in the real world, and then you develop and build on them in response to real use and user feedback. So, the first stage is to build the first chunk and get that into use with real people later this year. But that will just be the first chunk of the system. The timescale for developing the next chunks will depend a little bit on how well that goes. If we test the first chunk, and it’s a complete dog and everybody hates it (which I hope will not be the case!), then we will spend more time developing and improving that. On the other hand, if it works brilliantly, we’ll move on faster to the next piece.
Will it be an option for everybody to try, or will it be targeted to certain court users?
What we typically do is start with a small scale test, and then move to a fuller “private beta” test, before going to “public beta”, which means that anyone can try it. For the initial phases, with a few users, we can either do it in a particular place or for a particular type of application. For example, for our new digital divorce service, we’ve targeted a small number of users who come through the divorce centre in Nottingham, and we’ve asked them to sit in front of a screen with a member of our staff beside them, and said: “Have a walk through this and see how it goes”. The feedback has been really good – people find it much easier than the paper form – and we’re about to extend this to a fuller “private beta”. We’re going through the same process with probate users too (actually, probate went into its full “private beta” recently). And probate is even more satisfying, because, while the divorce process is really just a better way of generating an application, users trying out our new probate system are often getting their grant of probate within a day, which is really an extraordinary change from the experience of probate at the moment.
Although the fee increases are a separate issue.
They are a separate issue. We want to make the best possible service we can, whatever it costs. We start with something relatively limited and then we grow it, but, during the course of this year, we expect to get something which is effectively a public beta test. In other words, anybody can use it and give us feedback. The key principle is that we don’t roll things out, or extend them, until we are confident that they work. When I say work, I don’t just mean that, when you press a button, something happens. I mean that they give a good experience for users of the system, and operate well.
Improving stakeholder communication from the Ministry of Justice (MoJ) and HMCTS is key. It gets people on board and generates the goodwill to make things work (whereas, if things are suddenly announced at the last minute, you’re off on a bad footing). It’s those kinds of things that really have an impact on how lawyers feel about the whole system, because they feel they are not given time to get to grips with new things, things are announced without them being aware of them. Might there be any chance of a quarterly update on what was being worked on / what is coming?
I think communication is really important and we’re doing a lot at the moment to try to do more on this. We’re boosting our stakeholder engagement team; we’ve got professional engagement groups from each jurisdiction, with lawyers to help us make sure that what we are doing is not just communicated, but informed by people’s views, and we’ve also got a set of wider stakeholder groups, and engagement activity with public sector user groups, criminal justice partners, think tanks, and lobby groups.
So we are doing quite a lot to try and grow what we are doing, not just set to “transmit” but to “receive”.
We’ve also got quite a lot of communications channels which we are trying to grow and use. We have a HMCTS blog, which is one of our key channels, and that has about 7,000 subscribers. We could clearly grow that a lot. We are trying to put things on there regularly about the reform programme and invite comments. Again it’s not just one way, it is about inviting people for their comments. I’m also tweeting. Occasionally I get criticised on Twitter for being too uncontroversial, or too nice about my staff, which I am afraid is sort of a hazard of tweeting as a public official! It is another route where you can quickly and easily pick up messages about what we are doing. I get a lot of contact on Twitter from the professional legal community who are quite active. That is, I think, quite positive. But we’re always looking for more ways to communicate – in both directions. So if readers want to sign up for the blog, or contact us with their thoughts and ideas, they’d be more than welcome.