The courts should embrace IT and the internet in ways that improve access to justice and make scarce resources go further, if the values embodied in Magna Carta are to be realised, according to a senior judge.
Sir Ernest Ryder, Senior President of Tribunals, called for replacement of the “post-Victorian superstructure” of the courts and tribunals with a modern, paperless system based on online access and a streamlined judiciary.
In a speech to the American Bar Association in Washington, DC, earlier this month, entitled In the shadow of Magna Carta, he said the task had become urgent after the “recasting of the state” after the financial crisis of 2007.
“Clarity and simplicity” had to be achieved not through reformed procedure rules – which could lead to satellite litigation – but through reforms that “for the first time take full account of developments in [IT]”.
Paper-based procedures for starting proceedings, service and due notice, and filing documents, should be channelled into a single process. “This common process would not be paper-based. It would be IT-based,” he said.
He continued: “Litigants should in the future be able to access a courts and tribunals website, through which they can initiate proceedings, pay the relevant fee and do so through the use of intuitive, simple-to-use web forms.
“This should then form the basis of effective service either by the litigant or the court, the starting point for the generation of procedural timetables unique to the proceedings, the electronic court file and e-based case management.”
Sir Ernest, who was appointed to the Court of Appeal in 2013, backed a suggestion by Sir Brian Leveson, President of the Queen’s Bench Division, that “assistance should be made available to litigants via the use of digital navigators to help them use the new system”.
A web-based system, should be accompanied by both “e-prompts, where procedural deadlines are imminent” and “e-receipts and notification to the court and the parties”.
Greater use of the internet, said the judge, would increase access to justice, in part by reducing fear among citizens who were now used to going online. In many respects “most of us are at home on the net”, he argued, adding: “That we are suggests to me that an internet-based process to initiate and manage proceedings will be something that individuals will be at home with, and to a far greater extent than the previous paper-based process.”
Also, more use of the internet and IT would reduce the need for back-office space and reduce the need for physical attendance at court, which would help ease the pressure on buildings and resources. “Moving a significant amount of pre-trial (not trial) process on-line, while promoting the use of technology to enable hearings to be virtual, will arguably reduce the need to maintain some of our post-Victorian court estate.”
Further, increasing the use of technology would enable the “expansion of justice in more than the formal sense”, he said. “Effective use of technology will enable us to assess claims when they are issued to determine whether they are suitable for resolution by means other than formal adjudication, to assist the parties to select the appropriate method of resolution and manage the claim appropriately.
“Equally, it will enable us to direct those claims that are unsuitable for non-formal adjudication to the appropriate litigation track with the procedure tailored to the claim’s needs, while also enabling claims to move back to that track if consensual resolution is not achieved.
“In this way we could expand access to justice through facilitating an expansion in our concept of justice, and ensure that the justice system’s resources are targeted proportionately.”
Sir Ernest then turned to the structure of the judiciary, which he said was a “complex web of judicial offices” that “requires an otherwise unnecessarily complex set of arrangements to be put in place and carefully maintained to ensure that judges are properly authorised to sit in various courts and tribunals”.
The situation should be rationalised, he said. “We should be looking to maintain a judicial hierarchy, one that maintains the constitutional role of the senior judiciary – the Court of Appeal and High Court judges, while developing a structure of judges below that level who are capable of sitting as judges across courts and tribunals of comparable level.”
The new system should enable “flexible deployment to maximise opportunity and efficiency and facilitate those judges with leadership responsibilities being able to plan, allocate and distribute work between judges; to plan future recruitment; and to better implement judicial training to improve skills and to facilitate merit-based promotions.”
He concluded that the judiciary in an era of a growing number of self-represented litigants would have to “become more investigative” and “take active steps to secure equality of arms”. Equally, an IT-based system would require new skills. “A problem-solving approach in court will have to be matched by a problem-solving approach to case management.”