Lord Justice Briggs’ hotly anticipated Civil Courts Structure Review: Final Report was released in July of this year and in the months since, the report’s recommendations have been picked over by commentators and practitioners in great depth. For those who missed the fanfare at the time, the full report can be read here.
One of the more contentious recommendations made by Briggs LJ in the Final Report, and indeed one that was subject to wide ranging debate during the consultation period, was a call for the implementation of an ‘Online Court’ which will process (initially at least) money-only claims up to a value of £25,000.
While the intentions behind the proposal are certainly noble – from promoting Access to Justice against a backdrop of ever increasing Court Fees and Legal Aid cuts, through attempting to bring a somewhat ossified HM Courts and Tribunals Service up to date in a United Kingdom in which 82% of adults access the internet almost every day – the potential ramifications are wide ranging, and could have a substantial impact on both litigants and legal practitioners alike.
Some commentators worry that the new Online Court will lead to the increased exposure of litigants to unqualified and unregulated McKenzie Friends, and increase the number of those who opt to act in person. From here it is no great leap to fear that the system could lead to a ‘second class’ provision of Justice, in which those who cannot afford to instruct a solicitor (even on a pay-as-you-go basis for behind-the-scenes advice) may lose out to those who can afford to “lawyer up”, irrespective of the relative merits of their particular case. Certainly, more needs to be done to regulate (and/or insure) McKenzie friends, particularly those who charge for their support. But no-one could deny that a worrying number of people are denied access to justice, unable to afford legal fees and frightened off by the fear of an adverse costs award; and that we must start somewhere in our attempts to reform our creaking and overloaded justice system.
Clearly, there is a lot of work to do before the Online Court is born. Not least, thought will have to be given to whether or not a new “rulebook” will be needed – the current Court Procedure Rules are so complicated they confuse lawyers, never mind litigants. The success of the Online Court will depend on the ability of litigants to get one-off or pay-as-you-go advice from charities or lawyers. Lawyers want to support litigants who represent themselves, but there are professional risks to offering “pay-as-you go” advice and these risks will have to be addressed to encourage more lawyers to offer that support.
Modernising our legal system and adapting it to the internet age is critically important. But the process needs to be balanced with the need to avoid change for its own sake – there is a reason, after all, that the United Kingdom is still the chosen legal jurisdiction for vast numbers of foreign nationals and entities (indeed at the Commercial Court as many as 80% of the cases heard annually involve at least one foreign party).
Lawyers in our Dispute Resolution team belong to special interest groups such as the Commercial Litigation Association (CLAN) and the Professional Negligence Lawyers Association (PNLA) and have taken part in consultations to ensure that our experience of acting for litigants in lower-value cases is fed back to those like Lord Justice Briggs tasked with delivering a court system fit for purpose in the twenty-first century.
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