The Chancellor of the High Court has said “the one thing” he really wants to come out of the coronavirus crisis is “blue sky thinking” about how to improve commercial dispute resolution.
Sir Geoffrey Vos said the aim should be not to “take the old system and replicate it technologically” but to deliver justice “consistent with those born 20 years ago, not 70.”
Sir Geoffrey said: “The question for me is whether we can capitalise on what we’ve learnt during the lockdown, and I believe we can.”
Speaking at a Tech Nation webinar on commercial dispute resolution after Covid-19, he listed the changes which he believed should be made in the light of experience from the crisis.
These were the triage of all commercial cases in advance to decide how best to deal with them, more use of hybrid hearings mixing in-person and remote hearings, making remote hearings normal practice for interlocutory hearings, reforming court rules, having effective “end-to-end” case management systems, and “much more use of ADR throughout the process”.
Sir Geoffrey said a “more flexible, technological approach” was needed for the “many disputes” that would come from the blockchain and smart contracts, with a “quicker and less costly court process”.
Describing Zoom and Skype as “old hat”, he said the “whole array of technology available” should be considered.
He went on: “The one thing I really want to come out of this is some blue sky thinking on how to resolve real disputes for real people in the future.”
The judge said the biggest obstacles were trust and culture: it was essential to keep the trust of those providing and using the service, while the culture of the legal profession was a “very big obstacle and not easy to overcome”.
He added: “We must capitalise on how we’ve changed so we can create a system better suited to 2020 than 1875.”
Trevor Faure, a former global general counsel of accountancy giant EY and chief executive of consultancy Smarter Law Solutions, said that after the 2008 financial crash, law firms “tried very much” to do what they did before.
However, he warned people to “be wary of the notion that there must be a revolution” in dispute resolution.
“The answer is a lot more boring than that. It doesn’t replace judges with AI, though it may replace discovery with AI.”
Mr Faure described change that was “process-driven and fairly dull”, evolving gradually in an iterative way.
“In reality what clients are looking for are pragmatic, discernible improvements to the current system.”
Lord Falconer, the shadow Attorney General, said the current system of commercial dispute resolution had “done brilliantly in a crisis”, but it was “too bulky, too slow” and took too long to make minor decisions.
He said the system would “never go back” to the pre-Covid days, and quantum of damages could be better assessed by an algorithm than a judge.
Lord Falconer said hearings involving “big points of law”, for example hearings at the Supreme Court, could be heard remotely as there was no particular need for the parties to talk to each other.
However, smaller-scale commercial disputes, for example involving former business partners, could be “quite tricky to do remotely” and could benefit from the physical presence of the judge and face-to-face discussions outside the courtroom.
He added: “If we are going to harvest what we’ve learnt, we must make sure that judges are properly resourced.”