London International Disputes Week 2021 (LIDW21), held earlier in May, came at arguably one of the most critical times for dispute resolution in the UK. This year has not only seen the UK officially leave the EU (creating the potential for great divergences in legislation and regulation), but has also seen court hearings shift online due to COVID-19 lockdown restrictions.
It is little surprise that, for the first time in its history, LIDW21 was also completely virtual. The legal profession, like many others, has had to adapt to the new virtual world over the last year. The consensus of the panelists at LIDW was that the digitisation of disputes as a result of the pandemic has been overwhelmingly positive.
In his keynote speech, Sir Geoffrey Vos, Master of the Rolls and President of the Civil Division of the Court of Appeal, noted that virtual hearings are the new norm but are only part of the dispute resolution process and do not change the system itself; they merely change the mechanism by which cases are heard. Sir Julian Flaux, the Chancellor of the High Court, observed: “We will never go back to where we were in February 2020 before the pandemic hit.”
The concept of digitisation of the justice system in England and Wales is not new. Indeed, the HM Courts and Tribunals Service (HMCTS) court reform programme was already underway prior to the COVID-19 pandemic. However, while the use and acceptance of technology in the dispute resolution community has been advanced by pandemic, there is still a technological gap to bridge.
This has been exacerbated by the pandemic and by subsequent lockdowns. Sir Vos noted that “if all we do is to use PDF bundles and video conferencing facilities, we are not really changing the way we resolve disputes at all”, before proceeding to outline his vision of a harmonised online justice system for civil disputes in England and Wales.
In his view, the objective of the online justice system would be to enable effective pre-court dispute resolution, with integrated alternative dispute resolution (ADR) interventions designed to bring about consensual resolution. For disputes not capable of pre-court resolution, such cases would feed through an Application Programming Interface directly into the online court system.
A blue tick system
There are already online pre-court processes aimed at resolving disputes, such as ombudsmen, the personal injury portal and the whiplash portal. Sir Vos’s vision builds on such processes, making the most of what is good about them, but also building upon what is lacking. Extending the “blue tick” from social media into the legal world (Sir Vos’s proposed system would involve the accreditation of regulated pre-court portals) where anyone with a dispute, or any lawyer with any kind of dispute, could go and would be directed to the appropriate dispute resolution process.
Allaying potential scepticism, Sir Vos explained that such a system would not detract lawyers’ caseloads, rather it would enable lawyers to concentrate on complex cases that cannot be easily resolved, while individuals can vindicate their legal rights at proportionate costs and without undue delay.
The dispute resolution dog
The focus of Sir Vos’s online justice system is to facilitate effective and expeditious dispute resolution. In this regard, his message was that it is the role of the judiciary to set the standards and the principles by which online dispute resolution will be governed, by providing a framework for integrated ADR and ensuring that every dispute is tackled at every stage with the intention of bring about its compromise.
A judicial decision is not necessary for every case, and the dispute resolution system and the thinking around it needs to be recalibrated accordingly. As aptly put by Sir Vos, “we should not allow the tail, however waggy, to wag the huge dispute resolution dog.”
Digital commercial revolution: smart contracts and cryptoassets
Sir Vos referred to the Law Commission’s consultation on electronic trade documents, published on 30 April 2021, and the need for the dispute resolution community to appreciate that we are on the verge of a new digital era.
The consultation sets out proposals to allow electronic trade documents to be “possessed”, meaning that they will have the same legal recognition as their paper counterparts.
International trade is worth £1.153 trillion in the UK and is increasingly being undertaken by electronic, transferrable documentation, yet the underlying laws are based on practices developed by merchants hundreds of years ago. Accordingly, English law needs to adapt and evolve so that it can accommodate both smart contracts, cryptoassets and other digital assets. The Law Commission’s proposals are a welcome step-forward, but the legal system in England and Wales must be able to deal with the types of disputes that are likely to arise so that our courts remain attractive to international users.
Taking the “A” out of ADR
Sir Vos stated that “we should drop the “Alternative” from the name of “Alternative Dispute Resolution” as it is not really alternative at all”.
Instead, in his view, ADR would be an integrated part of the online justice system; aimed at the resolution of the dispute. In order to focus on the resolution of disputes, the online justice system would not be dependent on pleadings and statements of case and would instead use decision trees and mechanisms that aim to arrive more quickly at identifying the real issues which divide the parties. A variety of approaches to ADR would then be integrated, from early neutral dispute resolution to formal mediated interventions or on-screen algorithms suggesting solutions to points of dispute as and when they materialise.
As Sir Vos prefaced in his keynote speech, the message is an optimistic one.
The dispute resolution community has embraced digital advancement over the past 12 months, and the dispute resolutions systems in London are as attractive as ever. It’s time to build upon that momentum and move towards a holistic online justice system which takes account of the needs of the new digitally based generation of businesses and consumers, and leads the way in resolving disputes with the application of the sophisticated use of technology.