Online disputes: is it time to end the ‘day in court’? Not entirely I say as large sectors of the UK Population are not online, normal Juries need to be involved!

http://www.thetimes.co.uk/tto/law/article4365353.ece

Last week, the master of the rolls, Lord Dyson, described the publication of a report on online dispute resolution as “an exciting milestone in the history of our civil justice system”.

The report was written for the Civil Justice Council and our remit was to explore the potential and limitations of online techniques for the resolution of civil claims of less than £25,000.

Our starting point was the widely shared view that our traditional court system is too costly, too slow, and too complex, especially for litigants in person with small claims. Our main recommendation is that HM Courts and Tribunals Service (HMCTS) should establish a new, internet-based court service, known as HM Online Court.

This would have three tiers: the first would provide online evaluation, to help users with grievances to classify and categorise their problems, to recognise their rights and obligations, and to understand the options and remedies available to them.

On the second tier would be online facilitation. Here, facilitators would bring disputes to speedy, fair conclusions without involving judges. Communicating across the internet, these facilitators would review papers and statements and help parties by mediating and negotiating. Where necessary they would also use telephone conferencing facilities. In addition, there would be some automated negotiation tools.

The third tier would involve judges, working online. They would be fully fledged members of the judiciary who would decide suitable cases or parts of cases, based on papers submitted to them electronically. This would be part of a structured process of online pleading. Again this would be supported by telephone conferencing and, in the future, by video links.

Two benefits would flow from online courts — an increase in access to justice (a more affordable and user-friendly service) and substantial savings in costs, both for individual litigants as well for the court system. Internet-based dispute resolution is already operational in the private sector as well as in the court systems of other jurisdictions, including Canada, Holland and Germany.

The response to the report has generally been positive. HMCTS described it as “important and thought-provoking” and seems committed to taking the idea forward. The Law Society described the report as an “exciting and interesting proposal that clearly calls for further detailed consideration”.

The Bar Council was more circumspect, warning that “we must be wary of creating a system which is over-simplified”. Justice will not be served, it went on, “if people with complex claims find themselves funnelled down routes that are designed for a quick result at the expense of proper consideration of relevant facts”.

This concern has been echoed by some solicitors. Nowhere, though, do we suggest that complex claims should be settled by the proposed online court. If complex claims were to come before online facilitators or judges, we would expect them to assign these to the traditional court system. Online dispute resolution is not suitable for all cases.

On social media there has been some agitation about the report’s reference to eBay and the 60 million disputes among its traders that are settled each year using online dispute resolution. We are not suggesting the court system should employ eBay adjudicators. Our interest in eBay is that it shows that there are already technology platforms that can process large numbers of online claims. This affects timing. We recommend piloting of the online court during 2015 and 2016 and full-scale launch in 2017. This is realistic if an existing platform is used but probably not if a system is developed from scratch.

Will litigants lose their day in court? Yes and no. If a physical hearing is sought for public vindication, then online courts, if less costly, will fall short. As for transparency, the online court is likely to offer greater, not less, transparency, as the court’s workings and findings can be observed on the internet.

More generally, critics should be cautious about comparing online courts with some ideal and yet unaffordable conventional court service. As Voltaire would no doubt have counselled, “the best is the enemy of the proportionate”.

The comparison that should be made is with what we actually have today — a system that is too expensive, takes too long, is barely intelligible to the non-lawyer, and so excludes many potential litigants with credible claims. Regardless of who is paying, we must find a way to widen access and reduce unmet legal need at a cost that makes sense relative to the value of the claim in any case.

Our recommendations are backed by top judges. But the successful introduction of an online court will also need strong political support. In the lead-up to the general election, we hope that all politicians would want to support an online court as a way to increase access to justice — and cut the cost of resolving low-value disputes.
Richard Susskind is chairman of the Online Dispute Resolution Advisory Group of the Civil Justice Council

My  Thinking

Our starting point was the widely shared view that our traditional court system is too costly, too slow, and too complex, especially for litigants in person with small claims. Our main recommendation is that HM Courts and Tribunals Service (HMCTS) should establish a new, internet-based court service, known as HM Online Court

It would still be too complex for LIP’s online as much as offline!!

 Susskind does not mention or ignores? the numerous ways the CJS is being assaulted. Is there any kind of political imperative here not to speak out of line going on here?

Private Companies don’t deliver Defendants on time.

Court Interpretation is in crisis due to privatisation.

Lawyers are still the same complex creatures online as well as off!

The Criminal Bar is being genocided by over twenty or more years of successive consecutive cuts.  The Young Bar cannot afford to practice Post Tenancy.

 

Court Listings are being fucked up.

Pauperization of the Legal Aid Legal Profession means  Lawyers cannot afford to practice.

Houses, Spouses, Careers are being lost and  Barristers are finding themselves on Benefits JSA of all things with all the constraints that involved. ( At least they can scare the hell  out of their  Personal Adviser by quoting Chapter and Verse of Welfare Law if they know it!!).

 

 

This would have three tiers: the first would provide online evaluation, to help users with grievances to classify and categorise their problems, to recognise their rights and obligations, and to understand the options and remedies available to them.

A good idea that is an exact replica of what goes on offline where trained experienced Qualified Lawyers  work out whether various Legal Problems brought to them are ‘arguable’.

On the second tier would be online facilitation. Here, facilitators would bring disputes to speedy, fair conclusions without involving judges. Communicating across the internet, these facilitators would review papers and statements and help parties by mediating and negotiating. Where necessary they would also use telephone conferencing facilities. In addition, there would be some automated negotiation tools

Mediation is a good idea. You want to keep out of Court if at all possible but that does not negate or eliminate the Court Process altogether. This is the one of a few suggestions he makes that actually make sense so well done Susskind!

 

The third tier would involve judges, working online. They would be fully fledged members of the judiciary who would decide suitable cases or parts of cases, based on papers submitted to them electronically. This would be part of a structured process of online pleading. Again this would be supported by telephone conferencing and, in the future, by video links.

This is where Susskind loses it as do his sponsoring Fanclub.

So no Trial without Jury? a Judge acting as Judge-and-Jury in one person??!! Whatever the faults of the Jury System this cannot be right! The public accustomed to the wonders of Judge Rinder and Judge Judy will not think that this is abnormal. They will just take the Judge Only Led Trial as normal instead of patently abnormal.

There is no pressure on Advocates to convince the Jury to demolish the Prosecutions Case. No professional practice for Advocates to speak truth to power on the Case before them so lawyers and the general public lose out.

Defence and Prosecution Lawyers can ‘go to Court’ online it would be easy to set up. The Jury ditto. It would be a lot easier to  empanell a jury  online than offline because of   cost lowering convenience so maybe a lot less easier to chicken out.

It is entirely wrong to exclude the Jury and normal Court Processes from the online Environment. and Defendants would be at risk of    Article Six rights being violated because they can’t be gauranteed fair trials.jury_box[1]

To conclude this is a great idea that needs to be put out to Consultation with the Legal  Community and legally literate public in order to stop this going ahead in the wrong way.

We must not let this proceed unhindered. I rest my Case..

 

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This entry was posted in Civil Justice Council UK, Online Courts Richard Susskind Proposal, The Judiciary UK and tagged , , , , , , , , , , , , , , , , , . Bookmark the permalink.

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