Lord Briggs' Civil Courts Structure Review in 2016 saw greater use of technology and online legal proceedings as an opportunity for beneficial reform to UK courts.
Lord Briggs also noted that "civil digitisation" was "at a very early stage of development", even in overseas jurisdictions. Since 2016 progress towards digitising court procedures in England and Wales can fairly be described as tentative: a voluntary pilot has been introduced for online civil money claims (OCMC) worth up to £10k brought by litigants in person (CPR PD 51R) and Electronic Working (issuing claims and filing court documents online) has recently been made mandatory for all legally represented parties in the Business and Property Courts and the Queen's Bench Central Office. It is also available in the Business and Property Courts outside London. Both OCMC and Electronic Working sit within the existing Civil Procedure Rules, alongside the digital filing process for bulk users, Money Claims Online (MCOL).
New Online Procedure Bill
But the Courts & Tribunals (Online Procedure) Bill, currently passing through Parliament, is a bolder move towards the use of digital procedures for all court (and tribunal) users. The Bill gives the government power to establish an Online Procedure Rule Committee (OPRC) and gives that body the power to make online procedure rules. It also gives ministers powers to designate the types of claim (civil, family or tribunal) that will fall within the online procedure. It determines the membership and appointments process for the OPRC. The OPRC, once established, would have no direct relationship with the existing Civil Procedure Rules Committee. Its online procedures could in theory bear little resemblance to current procedures (although they would, of course, have to satisfy the fair trial requirements of Article 6 of the ECHR). The new online procedure will be, in the words of the Explanatory Notes to the Bill: "a new set of rules separate from current processes".
House of Lords amendments to the Bill
As introduced into the House of Lords in May this year, the Bill gave ministers powers to replace oral hearings with online hearings, and to require any type of claim to be dealt with using the new online procedure. Amidst concern at the breadth of powers given to the "executive to decide how litigation should be conducted", (per Lord Judge), amendments to the Bill by the House of Lords in late June provided that the minister may give notice of proposals to specify types of claim for the new online procedure only with the concurrence of the Lord Chief Justice. So the two would have to agree which proceedings will fall into the new online procedure.
In the course of debate in the House of Lords the government indicated that it had no intention to force users away from traditional channels, that it would be possible for users to opt for paper based procedures and oral hearings instead: "a paper route will remain open", they said. There would be an exit route for claims: the online rules would set out circumstances in which the online procedure will no longer apply. There was also a non- exhaustive list of factors by reference to which proceedings might be specified (with the concurrence of the Lord Chief Justice) as falling within the scope of the online procedure.
Understandable caution from the judiciary and the legal profession has been accompanied during the Bill's progress by calls for the online procedure to be compulsory. Alison Hook, author of the Use and Regulation of Technology in the Legal Sector beyond England and Wales, says that the most successful online courts are those that make participation compulsory; Professor Richard Susskind, IT adviser to the Lord Chief Justice, notes that self-represented litigants are "already let down by the courts and the online court would be designed for unskilled litigants". But Susskind also describes the Bill as the start of a project that will take "10, 15, 20 years in reality".
Where are we now?
Towards the end of July the Bill reached the Committee stage in the House of Commons, for which written evidence was invited. The Justice Minister maintained that it was not necessary to amend the Bill to legislate for switching from a digital to a paper process. Committee members agreed. Committee members also rejected the Lords' amendment providing for the relevant Minister to obtain the agreement of the Lord Chief Justice in relation to, for example, the types of claim which will be subject to the online procedure.
Assuming the Bill becomes law, the appointment of members of the OPRC will be just the start of a process that may culminate in virtual courts for a wide range of types of claims. With the oversight of the Lord Chief Justice as to what types of claim would go into the procedure, and with a mechanism for their removal from the online process, that prospect was perhaps less concerning than when the Bill was first published. It remains to be seen whether that curb on ministerial powers is reinstated.