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What is the future of our court system? Some key themes from a recent Westminster Legal Policy Forum

A difficult question to answer…and one that generated lots of debate at the recent Westminster Legal Policy Forum Keynote Seminar, “Modernising the courts and tribunals service – infrastructure, efficiency and access to justice”, which we both attended.

Interestingly, the seminar considered both the criminal and civil justice systems. The focus was on assessing the impact of existing reforms and examining proposals for future change.

Speakers included:

  • Leveson LJ, who has undertaken a modernisation review of the criminal justice system.
  • Professor Richard Susskind (Chair of the Online Dispute Resolution (ODR) Advisory Group of the Civil Justice Council and IT Adviser to the Lord Chief Justice), who kicked off the civil debate by taking a step back and analysing the purpose of the court system. He outlined proposals in the ODR Advisory Group Report and got the audience’s attention by pointing out that computers are now coming up with better, quicker and more accurate answers than the human brain!
  • Robert Thompson, Vice Chair of the Civil Court Users Association, Greater London and South East Region, who considered the current system from the perspective of debt recovery users, criticising the current court fees structure, but positive about how it works up to judgment.
  • Andrea Coomber, director of JUSTICE, who explained the rationale behind and proposals put forward in her organisation’s report “Delivering justice in an age of austerity”.
  • Jim Leason, Head of Court Management Solutions at Thomson Reuters, who provided a practical update on the courts’ digitisation programme and the introduction of the new electronic court file (CE-file).
  • Natalie Ceeney, Chief Executive of HMCTS, who rounded off the debate with a summary of modernisation initiatives, to date, and some key “design points” for the future of civil justice.

Lots of opinions were expressed, and there was lively discussion, with questions from the floor.

We have each chosen five key “take home” messages to provide some food for thought about the shaping of our justice system and how it may look in five years’ time:

Beverley’s highlights

Joining up the dots

Leveson LJ provided some fascinating insights from his review of the criminal justice system. It is to be hoped that a “joined up” approach will be taken so that the review of the civil justice system can benefit from lessons learned during the criminal review. Some key messages included:

  • Until now, judicial reforms have generally involved “bolting on” new procedures to old, so that there is a hotchpotch of old and new. That is not an effective means of modernising.
  • Any review must be inclusive, and seek views from those involved in all aspects of the system: a diversity of views is integral both to testing ideas and coming up with a design that will command support.
  • There is a need for easier, more flexible ways of communicating, a reduction in the volume of paper, and fewer hearings that people need to attend in person. Well-functioning IT is at the heart of this (with necessary safeguards in place).
  • New rules can be created but this will be futile without strong judicial leadership.

The tail should not wag the dog

Most speakers agreed that harnessing technological developments is key to modernising the courts. However, some caution is required. Leveson LJ, for example, noted that a “video trial” would be qualitatively different to a trial at court, and safeguards will be required to avoid downgrading procedures and reducing public faith in the system. Other speakers identified the need to start by thinking about the desired outcomes and then find the appropriate IT to support them, rather than letting the IT shape the processes. Professor Susskind identified the need to find innovative approaches and ways to deliver the desired result.

The human dimension

Many speakers identified the need to keep court users at the centre. Baroness Newlove, Victims’ Commissioner, gave a moving address on the importance of this in a criminal law perspective, but it has equal resonance in the civil context too. Encouragingly, when outlining some key principles on which any civil reforms will be based, Natalie Ceeney stated that the system will be built around those who use it, as well as the legal profession. There will be better online navigation and plain English forms. Currently, things are too complex and, for example, many court forms are returned.

Money, money, money!

Natalie Ceeney suggested that the “big driver” for reform is not costs cutting but the desire to create a better justice system. Other speakers, including Leveson LJ, identified money as being at the heart of the problems. He observed that, with less money available, it needs to be used in clever ways. He also noted that the MoJ is a “non protected” government department, and its budget has to cover not just the courts but things like legal aid, prisons and the probation service. Both he and Andrea Coomber referred to the fact that the Treasury will publish the results of its spending review at the end of November. Andrea Coomber said that this could be a “game changer”. Natalie Ceeney did recognise that there are no concrete plans for the justice reforms yet, and that they will be dependent on the level of investment available. The message therefore seems to be that, until the budgets are known, the possible future shape of the justice system is a matter of some speculation.

In it for the long haul

Whatever the impetus, it seems clear that we are facing radical reform of the English justice system, to make it suitable for the 21st century, and that there are challenging times ahead. Natalie Ceeney noted that “rethinking how we do justice takes time” and suggested that “conservatively” it will be five years before any significant changes are implemented. Looking at what is to be achieved at a time when budgets seem to be limited, and given the starting point, it seems as if it might take significantly longer than that to achieve the objectives. However, if sufficient investment is made and there is sensible engagement, it is clear that, as well as the challenges, there will be exciting opportunities.

Lucy’s highlights

If it ain’t broke…

From the perspective of those using the court system for debt recovery, Robert Thompson argued that it is difficult to see how the existing procedures in place at the County Court Bulk Centre could be improved. The current system, up to judgment, with the options of default judgment and summary judgment works well (although big improvements could be made post-judgment to allow for effective enforcement at County Court level). Andrea Commber agreed, noting that it should not be forgotten that a lot of claims are not disputed, and changes need to be kept in perspective. The clear message was that changes should not be made where the system already works.

ADR to the fore

The report of the Civil Justice Council Online Dispute Resolution Advisory Group advocates the introduction of an online court for claims under £25,000 (HM Online Court). The first two tiers of the proposed three tier system aim to try and assist parties to resolve a dispute before it is referred to a judge. Andrea Coomber welcomed the opportunity this will give for the benefits of ADR to be applied more widely within the justice system. Professor Susskind also highlighted the role that ADR has to play. He took this a stage further, suggesting that access to justice is not just about dispute resolution but also dispute containment (rather than escalation) and dispute avoidance and “legal health” promotion.

Tearing up the rule book?

In order to facilitate the proposals in the ODR Advisory Group Report, Professor Susskind envisages that a new simplified set of procedural rules will be required. He suggested this should be no more than 10 pages in length. Given the length of the Civil Procedure Rules and the time it takes to revise these, whilst “short and simple” sounds good in theory, in practice this may be a significant challenge (not least, as any new rules will have to be consistent with existing laws).

It pays to talk

Law firms may need to invest in their own systems in order to allow them to connect to the court system. Timely and detailed consultation and communication will be crucial, to ensure that all stakeholders know what is required and are given sufficient time to prepare.

Opportunity knocks!

Jim Leason, of Thomson Reuters, suggested that the introduction of a digital court will allow other systems to use court data, which will support further innovation. In turn, this will allow cases to be managed more efficiently, and assist case management.

Practical Law Dispute Resolution Beverley Barton Lucy Swallow

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