Lord Justice Briggs is carrying out a review into the structure and operation of the Civil Courts. In his Interim Report, published in December 2015, Briggs LJ recommended the creation of a new Online Court to enable civil disputes with a value of up to £25,000 to be resolved without the involvement of lawyers. It may be some years before the Online Court opens its virtual doors, but funding is in place for its design, testing and implementation, so now is the time to give your views on its design.
How the Online Court might work
Despite its name, the Online Court is not going to be wholly online and it is not simply a digital version of the existing court process. Instead, it is intended to be a new type of court where litigants can resolve simple disputes of modest value without needing to use lawyers. It is not intended to be used for more complex disputes, which would still be resolved through the County Courts or High Courts.
The proposal is that the Online Court would deal with claims in three stages:
- Stage 1: claimants and defendants would be assisted to identify the key elements of their claim or defence online:
- This would be done through a series of questions, which should produce a statement of case which can be easily understood by both the opposing party and the court.
- For example, the first question for the claimant would identify who the dispute was with: a neighbour, holiday company, builder, etc. If the dispute was with a holiday company, the next question would identify whether the dispute related to the cancellation of a holiday, the quality of the accommodation, and so on. The questions would identify the nature of the dispute, and the claimant would be prompted to upload evidence and relevant documents, such as any contract.
- Once the claimant had worked through the questions, a claim form would be generated for him or her to amend and approve. The claim form would then be sent to the defendant, and the defendant would go through the same process to generate a defence.
- At each stage, the litigant would have access to an easy to follow summary of the key legal principles relating to the claim. Assistance would also be available for litigants who found the online process difficult or impossible to use.
- Stage 2: case management and conciliation:
- Case Officers, rather than judges, would deal with case management issues. Claims would be managed online or by telephone.
- Conciliation is intended to be part of the normal process of the Online Court. Case Officers would also seek to resolve disputes. The Interim Report discusses whether the Case Officers should act as mediators or engage in evaluating claims, and favours mediation.
- Stage 3: trial:
- Cases would be determined by District Judges and Deputy District Judges. The judges would be expected to take a more investigative role and would be given more training on legal issues to compensate for the fact that the parties will be unrepresented.
- Traditional trials would be a last resort for cases which could not be resolved on the papers, by telephone or by video. However, the report recognises that a traditional face to face trial may be appropriate in some cases.
The Online Court is intended to complement existing initiatives such as the Shorter Trials pilot and the HMCTS Reform Programme (which is intended to digitise the operation of the courts within the next four years).
Key uncertainties and areas for consultation
There are a number of key uncertainties, including whether the software to enable Stage 1 can be built. The report also outlines a number of issues which will need to be determined while the Online Court is being developed:
- Should the Online Court be part of the County Court or should it be a separate court with its own procedural rules? Briggs LJ currently favours creating a new, separate court so that the Online Court does not adopt a "lawyerish" culture.
- Should using the Online Court be compulsory? If parties can opt out of the Online Court, the concern is that wealthier parties may do so to try and intimidate their opponents. Equally, it may be necessary to have a transfer process for more complex cases which start in the Online Court.
- Value limits: at present, Briggs LJ suggests allowing the Online Court to deal with disputes worth up to £25,000 (perhaps with a lower initial limit). The £25,000 limit has been proposed because below this level, the parties' legal costs are likely to be disproportionate to the amount in dispute.
- Should particular types of claim be excluded from the Online Court? Briggs LJ favours excluding certain types of claim, such as claims for possession and claims by or against children or other protected parties.
- Appeals and cost-shifting provisions: these issues are still under review, but it is unlikely that legal costs would be recoverable in the Online Court (mirroring the position on the small claims track).
Briggs LJ has been asked to complete his review by the end of July 2016, so he has asked for written responses to the issues set out in his Interim Report, including the proposal for the Online Court, by the end of February 2016.
Briggs LJ is also consulting on proposed reforms to the enforcement process, including in particular a proposal to unify the High Court and County Court enforcement processes, taking the best of both. The aim of these proposals is to streamline and speed up the enforcement process.
The proposed Online Court may resolve many of the difficulties which the courts currently face in cases involving litigants in person. If it is as user-friendly as intended, it will also improve access to justice and enable disputes to be resolved quickly and cost-effectively. However, a number of issues have not yet been resolved, including whether parties can opt to use lawyers if they wish (for example, for cases which might otherwise set a precedent or lead to a flood of similar claims) and the impact which this might have on the process. The English court system is traditionally adversarial, so the introduction of judges with a greater investigative role will also break new ground.
Businesses which are likely to be heavy users of the Online Court (whether as claimants or defendants) should therefore review the proposals carefully and ensure their voices are heard during the consultation process.