Online Courts in the United Kingdom: The third country to experiment after USA and Canada – By Devaang Savla

ABSTRACT

This paper first establishes and recognizes the need for an Online Court in light of its distinguishing feature of having a court process, from start to finish, without the need of a lawyer. It thereafter investigates the criticism that online court system has potentially had, navigating through them to identify the future of such system. Realizing that the current proposal of establishment of the first online court in the United Kingdom is at a nascent stage of its implementation, briefly address the possibility that can and if Artificial Intelligence possibly lead to a legal revolution, completely over-riding the traditional court system, eliminating lawyers and judges too.

INTRODUCTION

As per the Final Report on Civil Courts Structure Review[1], the concept of the Online Court essentially establishes a novel and more investigative court system which is specifically designed for navigation of a case sparing the need to engage a lawyer, removing the inherent need of a legal professional as against an indispensable requirement of traditional court practice. Zuckerman [2] states that the primary purpose of the Online Courts is to dispense with the need of legal assistance for a litigant. The litigant through this new system will be able to bring or defend a claim without having a compulsory need to engage a lawyer. The point of consideration and discussion is that what brings the need to eliminate the role of a lawyer in case proceedings. The underlying objective is to improve access to justice as many litigants are unable to pay for legal representation. [3] We are much aware of the fact that smaller sums are of critical importance to small business owners and individuals who may not have the capacity to pay for professional legal assistance, especially when litigation turns out not to be cost effective. The fact remains that smaller sums are valuable to litigants falling in this bracket where online courts can offer a solution to such unaffordable and/or imprudent litigation. At present, although alternatives like Legal Aid and special costs regime are available but they serve a highly reserved class of litigants and jurisdictions. [4]

CRITICISM, LIMITATIONS & CHALLENGES

The current model of the Online Court is simple use of technology in form of digitization and data processing; using software and algorithms to collect, compress and prepare a legal literature for expert judges to adjudicate on the matter and provide a final decision. In a way, the role of a lawyer as part of the traditional court infrastructure is replaced and exported online, where the litigant itself will be competent enough to bring or defend his claim using computer technology. The objective of the Online Court in light of its distinctive feature of completely eliminating the need of a legal assistance leads to certain concerns in nature of criticism, limitations and challenges, which are discussed as follows;

(a) Elimination of Lawyers
Lord Briggs clarifies that the design objective of online courts is not to exclude lawyers [5] , which interestingly is contradictory to its primary purpose as discussed before. Alternatively, it is suggested that the design objective is to allow access to the new court by both lawyers and Litigants in-person. Hence, the governing legislation shall not intend to specifically exclude lawyers but given an opportunity to the litigant to pursue his case in-person. They very interaction of the new court system with its jurisdiction will lead to circumstances where lawyers will form part of the process. For example, claims against business houses and companies will involve legal representation from the end of the defendant. Undoubtedly, the online court will provide access to justice for litigants who cannot afford a lawyer, but will also devoid him of access to professional legal advice, in contrast to the opposite party being represented by a legal professional, which may qualify as discrimination or unfair practice in some sense. This disadvantage to the Litigant in-person requires consideration, where it can be argued that the advantages completely out-weigh the benefits.

The second aspect would be in relation to costs. How fair would it be to add the burden of cost of litigation (legal representation) onto the litigant in-person? To this it is suggested that a fixed recoverable cost could suffice the interest of the party being represented by a lawyer. [6] Hence, the online court platform does not eliminate the role of a lawyer but sufficiently paves way for financially incapacitated litigants to seek justice.

(b) Limitation of Jurisdiction & Appeals
The scope of claims that can fit in the new online court system is a question of acute importance. Not all cases within the civil jurisdiction of law can be settled using the online court and therefore the partial-exclusion of lawyers remains limited to the jurisdiction of such new courts. Lord Briggs in his final report [7] recommends that there should be no compulsory inclusion of damage only sector of claims; where HM Courts and Tribunals Service (HMCTS) suggests that only specified money claims under £25,000 should be adjudicated by the online court which then excludes tortious, personal injury and negligence claims. Even in respect of specified money claims, professional stakeholders and experts have pointed out particular cases for exclusion on the basis of complexities involved in the sector. Further, the planned soft launch of the online court currently encompasses jurisdictions where the concentration of litigants in-persons is highest. [8] Therefore, the distinguishing feature of the online court to completely eliminate legal professionals appears to be limited in its scope of solution it aims to provide.

Considering procedural aspects applicable to online courts, the Ministry of Justice has reached on a policy consensus to have separate rules and procedure for the online courts. The litigation of a claim before an online court cannot be approached in isolation to the appeals that might follow the final decision of that court which will be governed by the CPR. Appeals form an integral part of substantial and procedural justice and therefore even ‘if’ lawyers are excluded to participate in the online court proceedings, a litigant in-person will be forced to engage a legal professional on account of an appeal being preferred. Further, as suggested in the final report[9] a first appeal might lie both from a question of fact and law; also, second appeal could be maintainable thereafter. Thus, the exclusion of a lawyer is limited to online court, from start to finish, but the life of litigation of the claim can stretch beyond. Conceding to the fact that no analysis of data is possible at the moment, but appeals might shadow the very objective of establishing lawyer-free court infrastructure, considering the litigation of the claim beyond the online court.

(c) Technological and Legal Challenges for Litigants
The Bar Council, CAB, the Chancery Bar Association, the Law Society, the Pro Bono sector and the Young Bar have unanimously repeatedly a serious concern regarding the difficulty of a litigant with computers and technology. To this Lord Briggs writes in his final report, “there is no conceivable form of litigation process which will not be a challenge to a significant class of litigants without lawyers.” [10] Barring technological challenges, most people need significant help when they approach a court; from identification of relevant documents, to working out evidence, to arrangement of legal papers, to communication in legal language, etcetera. Further, in a subtle form of an admission it is stated in the report that even the present system of advice agencies falls short of aiding litigants with this aspect.

Admittedly, a litigant can never be expected to have a legal acumen in comparison to that of a lawyer; but would a litigant possess enough acumen to be able to sail through the complexity of litigation of a claim, irrespective it being under £25,000. The pecuniary limit cannot justify the burdensome process any claim might involve. Will the litigant be able to do justice to his claim with complete lack of legal assistance? A study is undertaken by HMCTS on this aspect by way of forming Litigants in-person Engagement Group (LiPEG)[11]; whose analysis and data is yet to reveal an answer. The only available precedent is the Civil Resolution Tribunal, British Columbia which is Canada’s first online tribunal. [12] The CRT resolves Motor vehicle injury disputes up to $50,000; Small claims disputes up to $5,000; Strata property (condominium) disputes of any amount and Societies and cooperative associations disputes of any amount. Such existing online court system airs positive notion about the implementation of the first online court in the United Kingdom; but we have to deliberate the difference between the litigant population of the two jurisdictions; considering educational background, population’s tech-ability and other nationality differences.

The shortcomings of general public legal education and technological handicap may consent lawyers and other legal professionals to extend legal/para-legal services to litigants specific to online court litigation at a reasonable cost.

FINAL COMMENTS

The advent of online courts can also be perceived as growing use of technology to make legal systems more efficient and effective, making justice more accessible as a whole. E-filings, online data management, online evidence collection and alike were groundbreaking innovations at a point in time. Today, technology is able to address concerns regarding unaffordable and expensive cost of litigation, trying to eliminate the role of a lawyer. Although a blanket solution to eliminate lawyer’s costs completely from litigation is yet far from visible; but sufficient efforts are being made in the field. Technology displays the capacity and capability to break boundaries of the traditional court infrastructure and interface. Much work is being done in the arena of artificial intelligence and its applicability to the legal sector. Zuckerman states, “Even a partial displacement of lawyers’ tasks by AI may disrupt the profitability of the legal profession, lead to a fall in the number of practitioners, shrink the pool for judicial appointments and adversely affect competition in the provision of legal services. The displacement of lawyers and judges by AI would have serious implications beyond the loss of jobs. If machines were able to process natural language and articulate a legal argument or a judgment, the economic incentives for using machines instead of humans would be irresistible. Litigants who cannot now afford legal representation may content themselves with AI assistance even if it were not as good as highly skilled lawyers, because it would be preferable to litigating without any assistance.” In light of this observation, online courts could be the first step towards realization of the future of litigation.

 

[1 ]Civil Courts Structure Review: Final Report 2016, The Online Court, Chapter 6.
[2 ]A Zuckerman, Draft paper on Artificial intelligence – the implications for the legal profession, the rule of law and the adversarial process.
[3 ]Civil Courts Structure Review: Final Report 2016, The Online Court, Chapter 6.
[4 ]Civil Courts Structure Review: Final Report 2016, The Online Court, 6.10.

[5 ]Civil Courts Structure Review: Final Report 2016, The Online Court, 6.22.
[6] Civil Courts Structure Review: Final Report 2016, The Online Court, 6.39.
[7 ]Civil Courts Structure Review: Final Report 2016, The Online Court, 6.102.

[8 ]Civil Courts Structure Review: Final Report 2016, The Online Court, 6.50.
[9 ]Civil Courts Structure Review: Final Report 2016, The Online Court, 6.105-107.
[10 ]Civil Courts Structure Review: Final Report 2016, The Online Court, 6.12.

[11 ]Civil Courts Structure Review: Final Report 2016, The Online Court, 6.17.
[12] https://civilresolutionbc.ca

 

Leave a Reply

Your email address will not be published. Required fields are marked *

CALL FOR PAPERS [VOLUME 1, ISSUE 4] - JLSR JOURNAL [ISSN(O) : 2582-306X]

X
error: Content is protected !!