Online justice: investment needed as drive for reform grows

Joanne Harris

The potential benefits of getting online justice right are huge, cutting cost and time from the dispute resolution process. Getting it right, though, requires substantial investment and stable technology as well as buy-in from the profession.

Many of the reforms being carried out globally are designed to take away some of the fear of using the justice system. Electronic filing (‘e-filing’) for divorce and other small claims is now widespread.

Richard Goodman, Change Director for the United Kingdom’s HM Courts & Tribunals Service (HMCTS), reveals that in the days of paper filing, 40 per cent of divorce applications were initially rejected. Since the introduction of the ‘Divorce Online’ system in April 2018, Goodman says the failure rate has plummeted to just 0.4 per cent.

Goodman says the reforms currently underway in the English and Welsh courts began with a focus on litigants in person, with the online offerings to date being predominantly e-filing for divorce, probate and civil money claims.

Tom Price, Co-Chair of the IBA Litigation Committee and a litigation partner at Gowling WLG, acknowledges this focus. ‘The benefits of online justice are perhaps more noticeable for unrepresented litigants, which is really who most reforms are intended to assist. Bringing those processes online into a form consistent with other familiar tasks like paying vehicle tax makes them more familiar and less intimidating,’ Price says.

Andrew Mackenzie, Co-Chair of the IBA Access to Justice and Legal Aid Committee, suggests that technology could increase access to justice, particularly for people in remote areas and those with disabilities.

Andrew Mackenzie, IBA Access to Justice and Legal Aid Commmittee

Mackenzie says avoiding a courtroom with challenging physical access, or a journey to court, could benefit many.

‘Online dispute resolution also offers to persons with motor or cognitive impairments the advantage of taking the necessary time to participate effectively,’ Mackenzie says. ‘Documents can be submitted online, and negotiations between the parties can similarly be conducted via text-based communication, making participation in the resolution process much more convenient and efficient.’

Mark Woods, also a Co-Chair of the IBA Access to Justice and Legal Aid Committee, adds that, in his view, online justice is a good thing, although he notes not everyone agrees. However he says digital courts could be a step too far.

‘If the factual situation is so simple that artificial intelligence can readily apply the law to it, the reality is that the case will settle with two experienced lawyers negotiating,’ Woods points out.

For lawyers using the courts, electronic working is starting to generate benefits. Richard Atkins QC, Chairman of the Bar Council of England and Wales, reports his days of lugging boxes of paper to court are now gone as the criminal courts have become largely paperless.

Some jurisdictions have gone further than offering practitioners digital filing and bundles. In British Columbia, Canada, the recently established Civil Resolution Tribunal resolves small claims valued at less than CAD $5,000, some property disputes, and as of April 2019, motor vehicle accident and injury claims of up to CAD $50,000.

Australia’s Federal Court also has an online court, called eCourtroom, which handles issues such as ex parte applications for substituted service in bankruptcy proceedings, applications for examination summonses and the giving of directions or other orders, although it has not been used for trials.

Meanwhile the New South Wales (NSW) government is investing AUD $7m over four years to establish a fully online court, with the Local Court Small Claims Division and the Possession List of the NSW Supreme Court set to be the first to test the system.

Mike Hales, a litigation partner at law firm Minter Ellison, says: ‘In a country the size of Australia, the main benefits of any electronic improvement in the courts is accessibility and costs savings, particularly for those living in remote locations.’

But Hales adds that there have been teething problems, especially with e-filing and the variety of systems used by different courts.

‘The courts have been reactive to practitioners’ concerns about these issues and they are diminishing over time as the court's systems become more flexible and practitioners get more used to them,’ he acknowledges.

In the UK, the failure of the Ministry of Justice’s information technology systems hit the headlines in January 2019. Goodman says none of the online services offered to litigants in person stopped working. ‘Courts continued to run up and down the country and hearings continued to progress because of good continuity business planning,’ he says.

He acknowledges the failure was ‘unacceptable and deeply frustrating for our staff and people who use and work across the justice system. We shouldn’t be suffering IT outages of this nature at all, so there’s clearly work to do with the central department to reduce the chances of that happening again’.

‘It is understood these issues related to the existing, aged infrastructure, rather than the modernised systems the court is introducing, but it highlights that the infrastructure can be a weak point and needs continued investment if digitisation is to be a benefit,’ Price says of the outages.

Atkins says the issues seemed to be a ‘perfect storm’ with both the secure criminal email system and servers crashing at once.

‘The drive to go digital must be backed with sufficient funding,’ he points out. Atkins backs the general thrust of reforms, but says they need to be supported in the right way.

‘We’ve moved a long way in a relatively short space of time. We need to make sure we don’t run before we can walk,’ he concludes.