12 April 2018

Civil Justice after Jackson - are we embracing the digital revolution?

Sir Terence Etherton, Master of the Rolls, delivered a lecture on 15 March 2018 about the civil justice system following the retirement of Sir Rupert Jackson, the architect of the Jackson reforms. The lecture focused on the need for the courts and the legal system to develop and adapt to the digital world. The necessity of the courts to adapt is becoming increasingly urgent given the fact that the world now operates extensively in a digital arena. This affects not just the practicalities of how cases are resolved in court and how justice is administered, but also the types of dispute that the courts are being asked to resolve.

It is pleasing to see that the judiciary is taking steps to embrace the digital revolution. However, the concern is that the changes are not occurring rapidly enough, and that the proposed reforms might not go far enough.

Sir Etherton explained that the reasons underpinning the need for digital reform include an increase in litigants-in-person (as a result of changes to legal aid provision and the cost of litigation), changes to society that the growth of the digital economy is creating (e.g. new ways in which disputes can arise), pursuit of a cost-effective and efficient court system as well as the perceived inaccessibility of our civil courts by individuals who don't currently bring claims.

Sir Etherton also outlined some of the ways in which digital reform was being and has been implemented. For example, an Online Procedure Rules Committee for online court claims has been proposed, the purpose of which will be to formulate new rules specifically applicable to online dispute resolution. A shadow Online Procedure Advisory Group is also considering what would be appropriate rules for online dispute resolution generally.

Another example given by Sir Etherton was the CE-File system in the Rolls Building, which became mandatory in October 2017 for represented parties in the Business and Property Courts. He also discussed a £1 billion investment in court reform which will cover various IT initiatives, including a pilot scheme which provides a wholly digital process for probate applications, and a divorce pilot scheme which has been running since July 2017 for uncontested divorces. The facilitation of settlement of online claims is also under consideration.

Sir Etherton concluded that reform post-Jackson is certainly going to continue and the digital revolution will play a key role in that reform. The lecture can be found here.

While it remains to be seen how progressive the post-Jackson reforms will be in practice, as things currently stand, there is still a significant amount of change required to truly “digitise” the judiciary and the judicial system. Central to any change is the attitude of those administering justice and participating in the judicial system, so that they embrace the use of developing technologies, rather than fear them.

To enable this, there needs to be readily available technical support and training so users feel comfortable in navigating new technologies. For example: judges need to be trained and encouraged to use electronic trial or hearing bundles so that the use of hard copy bundles becomes an exception; solicitors need to be encouraged to embrace digital time management systems so that the production of, for example, an electronic bill of costs or Precedent H is quick and easy.

All of this, of course, will require substantial investment in training facilities and technical personnel. However, only then will users have the confidence to invest time and money in new technologies, and administer justice in a digital world.

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