The future for litigation is … digital

A new online court has been recommended by Lord Justice Briggs in a bid to grant better access to justice for businesses and individuals dealing with small to moderate value disputes. But what will it mean for the future of litigation? Keystone Dispute Resolution Solicitor Martin Pearse investigates in his latest Keynote.

Digital Britain

My mother recently told me about something she had read on her iPad. No big deal, perhaps, except she is knocking on 80 and it was the first time she had ventured online without more youthful assistance.

A study has revealed that 95% of the British population now has access to the Internet, of whom a massive 73% are direct users (that is, like my mum, they can go online themselves, using their own devices).

And yet the British court system remains trapped in the Victorian age, complete with wigs and gowns, oak panelling, scratching pens and mountains of paperwork.

Lord Justice Briggs, a Court of Appeal judge, has just published a detailed review of the structure of the civil courts. Among the main weaknesses he has identified in the current structure are what he calls “the lawyerish culture and procedures” and “the continuing tyranny of paper”.

His proposed remedies are both dramatic and far-reaching.

Online Solutions Court

The biggest and boldest is the creation of a brand new Online Solutions Court, designed to give effective access to justice without lawyers for ordinary people and small businesses.

With certain important exceptions, this new court (to be up and running by 2020) will be compulsory for all claims with a value up to £25,000 (with some pretty broad hints that this will increase once bedded down). It will have its own set of simple rules, and will be accessed almost entirely online through tablets and smart phones.

Those with a grievance will first be directed to a form of digital triage, choosing from drop-down menus to identify the nature of their claim.

Bearing in mind that fewer than 10% of claims like these are generally even allocated to a court for determination, the new system will first sift out those not suitable for a legal process or which don’t need to be looked at by a judge. Guidance will also be provided on sources of free advice and assistance.

If the claim gets through this initial filter, it will next be considered by a new breed of dispute manager called a Case Lawyer. Trained and supervised by judges, these Case Lawyers will try various forms of conciliation, including referring the dispute to telephone and online forms of mediation.

If all else fails and the case just can’t be settled, the Case Lawyer will then select the appropriate mode of determination by a judge. This might be one or more of the following:

• traditional trial
• video hearing
• telephone hearing
• documents only.

Although lawyers are not banned from this process, a low fixed-fee regime will limit their involvement.

Lord Justice Briggs is not hanging around; he wants the triage stage to be in place as soon as possible, without waiting for the rest to be finalised.

Paperless courts

Hand in hand with the Online Solutions Court will be the digitisation of court processes.

Not only will all documents be required to be submitted electronically, but this will continue all the way to trial, with the use of display systems for documents and the near-simultaneous creation of transcripts of what is being said.

Think of the Oscar Pistorius trial, where judge, lawyers and witnesses could all follow proceedings on their own laptop screens, relayed to big screens for members of the public present in court. No waiting for everybody to find page 249 of File 3B: documents will be flipped up onscreen in seconds.

In the words of Lord Justice Briggs himself, these changes offer “a radically new and different procedural and cultural approach to the resolution of civil disputes which, if successful, may pave the way for fundamental changes in the conduct of civil litigation over much wider ground than is currently contemplated.”

In other words, there’s more of the same to come.

Fixed-price litigation

The digitisation project will revolutionise all courts, but the Online Solutions Court targets claims for only relatively modest sums – the vast majority in terms of numbers. Lord Justice Briggs has also endorsed the further extension of the fixed-costs regime to cover even more types of claim.

This is in line with the focus of all recent reforms of the courts (those in the know will think of Woolf and Jackson) on ‘access to justice’ and ‘proportionality’.

The message to litigants and lawyers is clear: find new, more economical ways to resolve your disputes.

Online dispute resolution

Such methods are already out there:

• Cybersettle, which started life as an initiative to clear a backlog of cases in the New York courts, has settled 200,000 claims with a combined value of $1.6 billion through a simple process known as ‘double-blind bidding’: the parties put forward sums they are prepared to accept/pay until there is an overlap.
• eBay’s online resolution service is said to sort out 200,000 disputes each year.
• With online mediation, parties and mediators use discussion areas and exchange emails through drop-boxes instead of meeting face to face.
• There is even an ‘Ask the Audience’-type system where disputes can be determined by an online community which considers each side’s arguments and votes for or against them.

Impact on commercial litigation

The Briggs Reforms will not come cheap.

The State already funds the resources needed to administer justice in respect of small claims, as well as family disputes and the criminal courts, in part from the court fees garnered from higher-value claims conducted in the specialist divisions of the High Court. This cross-subsidisation is likely to increase.

Coupled with recent legal costs reforms, this will place an increasing financial burden on businesses and wealthy individuals involved in higher-value civil claims, and on those (including lawyers) who assist in funding, and sharing the risks of, those claims.

A two-tier system seems likely to emerge, separating higher-value/complex cases (requiring properly resourced, competitively priced, specialist lawyers) from those compulsorily allocated to a fixed-costs online lower tier.

As the value ceiling of the online lower tier increases to £50,000 and then £100,000 (as is widely predicted), and as more specialist practice areas are absorbed into its ambit, lawyers currently operating in this middle tier of commercial litigation will need to find ways of accommodating and profiting from the new, more streamlined digital methodologies.

The Briggs Reforms thus present both opportunities and threats to those involved in commercial litigation.

Those, like Keystone Law, who have already embraced digital technology and flexible work practices are well placed to assist their clients in taking full advantage of those opportunities.

Martin Pearse, a Consultant Solicitor in Keystone Law’s Dispute Resolution Team, has a Master’s degree in Advanced Litigation and is about to start a PhD at Exeter University, researching the impact of the increasing digitisation of the court system and the growth of online forms of dispute resolution on commercial litigation.