Marilyn Stowe: Online justice could become a legal reality

A recent report from the Civil Justice Council proposed the setting up of a new internet-based court service to be known as HM Online Court. Our current court system is too complex, too slow and too costly for many people and the idea is that smaller claims under £25,000 could be dealt with by the kind of online dispute resolution process that’s already working well elsewhere.

It’s a valid question to ask whether every case has to be judged in person, in a physical court. Maybe it is time for the justice system to embrace technology. It’s a radical proposal that’s bound to cause some furore in the corridors of the often staid legal profession. But there are a lot of things to consider. Legal aid cuts have meant many people have lost access to our justice system because of cost and that’s something I feel very strongly about.

Those who take the plunge often become “litigants in person” representing themselves because they can’t afford to pay a lawyer. Considering how complex the court process can be, I’m not surprised people often finish up losing even when they have a valid case.

It’s definitely worth looking at alternatives. The Dutch have already implemented an online process to cover many aspects of family law and relationship breakdown. Australia and parts of Canada have followed suit with online mediation and dispute resolution, with good feedback from those using it. So why shouldn’t it work here?

The UK’s proposed online courts would work on a three tiered basis. The first tier would be to evaluate your grievance. The second tier would involve online facilitation without judges. If that didn’t work, the third tier would see your grievance being pushed through to online judges to decide your case.

So far, so simple. Only of course, it’s not. The drive to create greater access to justice and cut the costs of that access is something I can really get behind, but the best intentions will only work if they get support and adequate funding.

The report’s authors are calling for cross party support, and for HM Courts and Tribunal Service to allocate a “modest fraction” of its £75m annual reform budget over five years to establish the online court. You notice there’s no mention of how much constitutes a “modest fraction”.

As a family arbitrator, I recently conducted an arbitration on paper. We had an initial face-to-face meeting to ensure all parties were happy and a telephone hearing where I had to decide on a point that had been raised, but the case itself was litigated entirely on paper without going near a court, and we had an outcome months ahead of regular court timescales. My point is that if cases can be settled efficiently like this for arbitration, I don’t see why it couldn’t work on a much bigger scale like the online proposal.

One crucial element would be getting support from the legal profession, and training judges to work effectively in this new environment. While some members of the judiciary will step boldly into this brave new world, I suspect others will probably see it as a bridge too far.

We also have to remember that not everyone has regular access to technology, especially during a time of family upheaval. There is a real concern that, in the attempt to make justice more affordable and accessible, we actually shut out people who could really benefit from this new service. It’s something those in charge of implementing any pilot schemes will have to think long and hard about if this idea is going to work properly.

Having experienced how arbitration on paper can work, I’m excited by this new proposal. I’d argue anything that helps people get more cost effective access to our justice system has to be encouraged. If we can use the kind of Online Dispute Resolution processes that are already working in other areas and apply them rigorously to our court system, we have the chance to create a process that’s quicker, less costly and more user friendly.

All this will only come to fruition if the various official bodies involved are willing to get on board. An advisory group will have to work with HM Courts and Tribunal Service and the Judiciary to create the formal pilot, design the structure of the online court and raise public awareness of this radical concept. It could very easily become bound up in the kind of legal complexities that it is trying to solve.

But, if everyone gets behind the idea, I firmly believe we could witness a really positive shift in the access to justice in just a few years and see the “science fiction” of online justice becoming legal fact.