Five years to fully online claims process, says deputy head of civil justice

Birss: Online future is a good thing

Every civil case will be started and managed online in five years’ time and it will be impossible not to comply with many of the rules as a result, the deputy head of civil justice has said.

Sir Colin Birss said machine learning and natural language processing would also allow the court IT system to constantly monitor a case and choose “an appropriate moment” to suggest alternative dispute resolution (ADR).

The Court of Appeal judge was speaking about the online future of civil justice at an intellectual property conference held remotely by Fordham Law School in New York.

He forecast that by 2026, all cases would begin online and be funnelled through a single point of entry for all civil, family and administrative tribunal cases: “We are working on the beginnings of this right now, on a project called case builder.”

Judges would work entirely online, Sir Colin went on. “Just as an example, we are rolling out an online judge’s order-making system for some small claims across England and Wales this year.

“In that system, the case papers are all online and the judge gives their case management directions – for a normal case – by clicking on a few radio [option] buttons.

“The judge can make free text orders too but mostly does not need to. The order is available to the parties via their online account instantaneously.”

Lawyers’ in-house IT systems will interface with the court’s, generating electronic court documents automatically and building a chronology of the case.

Sir Colin said: “In future, service of legal documents between professionally represented parties will be entirely electronic.

“There will be a provision in the terms by which professionals sign up to the court’s IT system that they accept service that way on behalf of all of their clients. We are working on that now.”

Compliance will also be integral to the system. As an example, the judge described the “cottage industry” of judges and staff chasing parties to provide the court with the information necessary to give case management directions, with the usual deadline of doing so within 14 days of the case being defended routinely missed.

“In our new online small money claims system, the parties can’t fail to do this because the questions are posed as part of the computer screen dialogue. The defendant can’t defend without answering those questions. The non-compliance problem has vanished.”

ADR will be integrated into the system too. “It will not be something which happens at a particular ‘stage’ nor will it be something which will only be triggered by the parties themselves. Indeed, it may well happen before the claim is even issued.”

Sir Colin said it would in time follow the lead of the new small claims regime for whiplash cases, in which parties can go to court to decide a single issue like liability but come back out again into the ADR system to settle another issue, such as quantum.

“But ADR will also be integrated into the process of a court action too. Using machine learning and [natural language processing], the IT system itself will constantly monitor the file and be able to choose an appropriate moment to make a suggestion to a litigant.

“For example, it might say to the claimant: the defendant has admitted they owe you a debt but denied the full amount – have you considered making an offer that you would settle for a lower sum? Or perhaps: can I put you both in touch with an online mediator?”

If a case has not been resolved, every pre-trial step involving the court which today requires a hearing would take place remotely using video conferencing and with electronic papers, Sir Colin predicted.

“There will no doubt be rare exceptions but they will be just that. This is not a denial of justice. We have learned that this is not only possible, but far more efficient not just for the court but for the parties.”

Most non-jury trials would be conducted “at least partly by video conference if not entirely that way”, he continued, while the trend for “more or less paperless hearings” would gather pace.

The judge acknowledged that not everyone would agree with him that this future was “a good thing”, but stressed it was vital that computer programmers were not left alone to make the rules of civil procedure in this world.

“We all need to engage. Otherwise we risk a dystopian cyberpunk-esque court future,” he concluded.

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