Sir Brian Leveson, president of the Queen’s Bench Division, has argued that a “change in approach” is needed by the civil and family courts, including the introduction of a “screening process”.
Sir Brian said a court officer with delegated judicial powers, “most likely via an online mechanism”, could “identify the real issues” behind a claim and help the parties “identify the best means to resolve the dispute”.
He said that might mean referral to mediation, arbitration or conciliation.
“It might be reference to early neutral evaluation carried out either by a lawyer, perhaps an expert, or perhaps a judge.
“It might equally mean immediate transfer to an adjudication track with formal case management, or to a fast track procedure such as that provided by the recently introduced shorter and flexible trial procedure in the Commercial Court and Chancery Division. In this way settlement could be properly promoted in individual cases.
“Equally, the screening process could properly ensure that disputes that raised novel points of law, that had wider importance than to the immediate parties, could reach trial and judgment at proportionate cost and in reasonable time, subject of course to the parties not wishing to reach a settlement.”
Delivering the annual Isaiah Berlin lecture in London, Sir Brian said that one ways courts could strike a proper balance between settlement and trial, “without undermining the primary aim of securing the rule of law”, was to develop an “IT-dependant system through which the courts can manage disputes so that they are resolved appropriately”.
Sir Brian said the idea was not new and had been suggested by Lord Justice Briggs in his Chancery modernisation review, the report by Justice entitled Justice in an Age of Austerity and the Civil Justice Council’s Susskind report on online dispute resolution.
Sir Brian said that in the criminal justice system, it meant judge-led case management and proper identification of the issues so that trials could be conducted more efficiently and effectively.
“It means ensuring that the parties and their lawyers only come to court when it is necessary with directions provided after email exchanges or online conferencing.”
Sir Brian added that information technology was likely “to provide the means” by which the justice system could be recast.
“It, however, is a means to an end. Its use, as with all other aspects of any propose reforms, can only be justified in so far as it is a means of achieving the proper ends of justice. Principle must shape any new practice.”