civil.justice: The SCL Response

The consultation paper issued by the Lord Chancellor’s Department, civil.justice:resolving and avoiding disputes in the information age, sought responsesfrom interested parties by 18 December. SCL has responded by welcoming thethinking behind the paper and giving a detailed account of the Society’s viewson the use which the Government should make of IT in the civil justice systemover the next 5 to 15 years. The SCL Response is in two parts: Part I reflectsthe views of SCL on the use of IT and focuses in some cases on areas which arenot central to civil.justice’s concerns; Part II deals with each of thepoints raised and the questions posed by the consultation paper.

The full SCL Response is too long to be reproduced here but can be viewed atthe SCLWeb site. Part I is however set out below in edited form.

The SCL Response to civil.justice: Part I How should theGovernment make use of IT in the civil justice system over the next 5 to 15years and why?

This introductory summary sets out our thoughts as to the use that theGovernment should make of IT in the civil justice system over the next 5 to 15years. In Part II we deal, chapter by chapter, with the points raised andquestions posed in the civil.justice paper.

The Society

• welcomes the IT thinking in the paper;
• hopes that this is the start of a continuous process;
• recommends that the watchwords for all IT planning should be building from a sound base of reality, minimising prescription so that there is maximum flexibility (the ‘standard’ of 2008 will be something not yet thought of), aiming always for increased quality and ensuring that IT is the slave and not the master.

A. Pre-requisites

This Summary is premised on the following assumptions:

1. that the Internet will indeed be in 5-15 years’ time the most universal method of accessing and sharing information of all kinds and all formats, whether via computer, TV, public kiosk or other methods;
2. that the Government adopts the Internet and related technologies as the platform of choice for the storage, access and sharing of information across government and between government and citizens, both corporate and individual.

B. Source materials

(1) Case Law:
The Government should make freely available via the Internet a database of alldecisions of all courts whose decisions are relevant for the purposes ofprecedent. Full free-text search facilities would be available. In addition,users would be able to conduct structured searches for judgments by reference,at the least, to the following parameters:

1. their status as ‘of public importance’ or ‘not of public importance’ as classified by the deciding judge(s), where these terms replace the current terms ‘reportable’ and ‘unreportable’. (We acknowledge that some judges may be reluctant to describe their judgments as ‘not of public importance’ – the nomenclature is not significant – but encouragement may be required to arrive at a reasonably realistic allocation by the decision maker. It is important that there be some delineation, although not essential if the search engine is good enough.);
2. the names of the parties involved in the case;
3. the date of judgment;
4. the court giving judgment;
5. judges;
6. counsel;
7. instructing solicitors.

Where judgments referred to legislation, hypertext links would lead thereader to the relevant part of that legislation in the web-based legislationdatabase.

Publishers (whether traditional publishers or lawyers) would be allowed tomake available, and charge for, enhanced databases of case law by addingeditorial and/or functional enhancements to those cases, by for example:

• providing layman’s summaries;
• classifying them according to area(s) of law and/or commercial, property, domestic or other issue;
• providing customised, proactive updating mechanisms, whereby users could specify types of cases of relevance to them and then be automatically updated when new judgments were given which fitted those parameters.

It may be that with enhancements in cheaply available technology, or by wayof joint venture, or simply off its own bat, the Government will be able toachieve these latter points itself. Judges, for example, could be trained toproduce one page summaries of their judgments in layman’s terms.

Why should this be done?

• improved justice and access to justice;
• greater public confidence in the justice system.

(2) Legislation and quasi-legislative material
The Government should make freely available via the Internet a database ofprimary legislation, secondary legislation, public circulars, green papers,white papers and consultation papers. Primary and secondary legislation nolonger in force would be archived separately. Legislation would consist of threeinter-linked hypertext files in each case:

1. (for new legislation beyond a certain date) a ‘punchy’ layman’s summary, prepared by the draftsmen, explaining the scope, significance and purpose of the legislation, together with the essence of the main provisions;
2. the up-to-date long form of the legislation as modified by subsequent legislation;
3. a record of the modifications, and dates of modifications, that have occurred to the legislation since it was first enacted.

Where necessary, these files would link within themselves and to one another(eg to relevant sections) and to other legislation in the database.

Public circulars, green papers, white papers and consultation papers wouldalso be accompanied by ‘punchy’, bullet-point layman’s summaries.

It will be noted that we are not talking here about the existing Statute LawDatabase (SLD). The premise of the suggestion is that the way in which the UKlegislates should be simplified. There is a clear need for codification, then,when necessary, amendment of the codified statute, followed by the frequentre-publication of the amended statute in a ‘consolidated’ form, withcomprehensive notes as to what has changed, when, how and why.

Until that happens, the SLD must go into the public domain, and be capable ofhyperlinked cross-references to the public case law database referred to above.One of the reasons why the SLD has been so expensive itself demonstrates theneed for a change of legislative technique: the way things are done at themoment makes it very difficult to build and maintain a comprehensive andtime-sensitive database. We feel that the past cost of the SLD (some of which isunderstood to have arisen from under-planning and ‘on the hoof’ designchanges) must be written off, or at least not levied so as to preclude generalpublic access which, as the Government knows, we regard as a fundamental right.

The database of legislation and quasi-legislative material would be fully andactually or virtually integrated with the case law database referred to above,and, from the same front end, fully free-text searchable and amenable tostructured searching by reference, at the least, to the following parameters:

1. the type of legislation (primary, secondary etc.);
2. the name of the legislation;
3. the date of enactment;
4. a category classification (a simple, high-level categorisation mechanism classifying each new enactment according to its areas of social relevance, eg education, health, employment, commercial, property etc. – legislation could fall into more than one category if appropriate).

If possible, the judgments in the case law database should be classified byreference to the same categories as the legislation. In the case of judgmentsthe judges, and, in the case of legislation the draftsmen themselves, wouldallot these categories from a pre-defined list.

Where legislation referred to other material in the database a hypertext linkwould take the reader to that related material.

Publishers (whether traditional publishers or lawyers) would be allowed tomake available, and charge for, enhanced databases of legislation by addingeditorial and/or functional enhancements to that legislation, by for example:

• adding more detailed summaries or commentaries on legislation;
• further categorising legislation according to particular interest areas;
• providing customised, proactive updating mechanisms, whereby users could specify areas of legislation of relevance to them and then be automatically updated when new legislation were enacted which fitted those parameters.

It may be that with enhancements in cheaply available technology, or by wayof joint venture, or simply off its own bat, the Government will be able toachieve these latter points itself.

Why should this be done?

• improved justice and access to justice;
• greater public confidence in the justice system.

C. The conduct of cases

(1) Secure private case web sites
Each case in the civil (and criminal) courts should have its own secure officialweb site stored on Court Service servers. The judge, parties to the case andtheir legal advisers would be allotted user names and passwords, with differinglevels of permissions, giving them access to the site which would allow them todo several things:

1. browse and view documents relating to the case, whether scanned files, electronically generated files (eg witness statements etc.), audio files (eg interview tapes), video files (eg video of testimony) or image files (eg photographic evidence);
2. post documents to the site via the Internet through a simple web-based editorial interface and, with special permissions, edit them – in this way discovery and lodging of court documents could all be achieved via the case-specific web site;
3. search the documents.

The case web site would act as a fully multimedia document and casemanagement system.

During the trial the site would be updated dynamically with streamingtestimony and oral argument, input directly by voice recognition (once thatbecomes a wide-spread reality) and/or video link. All parties – exceptwitnesses ‘in the box’ – would have access to this running multimedia casecommentary, to the rest of the stored documentation on the site, and to thepublic case law and legislation web sites described above, via live Internetterminals.

Once judgment was given, the judgment would be posted both on the web siteand, unless restricted, on the public case law web site. The site would stayopen until costs and all other matters had been concluded. The parties wouldthen be allowed to archive the site to their own computers.

Why should this be done?

• increasing efficiency and so cutting cost;
• better productivity and so reduction in delays.

(2) Public Litigation Database
Each case web site would have a public page including basic details about thecase – parties, court, judge, counsel and instructing solicitors, originaldate of claim, the case timetable, current status, court address and number (ifat trial) etc. – which would form part of a public litigation database,available via the Internet, listing all current claims and their status.

As well as being fully free-text searchable, the litigation database would beamenable to structured searching by reference, at the least, to the followingparameters:

1. party name;
2. court;
3. status;
4. date of originating claim;
5. date of trial;
6. judge;
7. counsel;
8. instructing solicitors.

The litigation database would link into a national daily cause list, compiledautomatically from the litigation database, also available via the Internet.

Why should this be done?

• increasing efficiency and so cutting cost;
• better productivity and so reduction in delays;
• greater public confidence in the justice system.

(3) The courtroom and ‘virtual courtroom’
Pre-trial hearings could be conducted by video-conference – subject tonecessary security measures – but only where at least one of several definedcircumstances applied.

As described above, when at trial judges and parties would have access tostreaming testimony, other case papers and the case law and legislation databasevia live Internet terminals.

Why should this be done?

• increasing efficiency and so cutting cost;
• better productivity and so reduction in delays;
• improved justice and access to justice;
• greater public confidence in the justice system.

D. The Government Information Service

It would make obvious sense for all government departments, not just the LordChancellor’s Department and the Court Service, to share their online resourcesand facilities to make available to the public the full range of Governmentinformation online through a common web browser interface. Indeed, this isenvisaged by ‘government.direct’ and is becoming a reality through theGovernment Information Service (‘GIS’) web site www.open.gov.uk.

The idea would be that a user could in time enter the GIS web site and‘ask’ (eventually via voice recognition), for example, what he needed to beaware of if selling a business and then opening a restaurant in Southampton. Thefollowing might happen:

1. he would be asked more salient details;
2. as each detail was given it would be analysed by the Government’s expert systems in each relevant department, which would feed back further salient questions to elicit all the necessary information to answer the query correctly and comprehensively;
3. in this way, the user would be informed about the relevant tax situations, the relevant property and leasehold considerations, about the fact, perhaps, that he had a number of obstacles to overcome in his position in relation to the local licensing rules in Southampton but that this could be avoided if he took certain steps – which, along with all the other details, would be furnished to him via a dynamic custom report;
4. further dynamic online features which would be included in and inter-connected with the user’s custom report in this case might include:

• links to relevant government and external web sites;
• contact details for relevant authorities, organisations and individuals who can provide further information;
• online registration, tax and other corporate filings, and licensing application forms;
• a standard form business rental agreement, dynamically generated by reference to the details provided by the user;

5. the user might then save his report/relevant details in his own GIS web site ‘profile’, so that he could return to it at any time to fine tune the guidance and bring it up to date – indeed he might opt to be automatically updated should any of the relevant considerations become modified by changes in national or local rules/legislation/case law.

Such an overarching system would need to call on information fromdepartmental and local authority servers around the country which would then beprocessed by diagnostic expert systems and reporting programs at the virtual‘centre’ of the Government’s online network. There may be many differenttechnical systems involved at the ‘back end’, although it should be planned atthis stage to make them as compatible and inter-operable as possible. The ideais that at the ‘front end’ the user would not know the difference, beingpresented with a seamless web browser interface to all aspects ofGovernment-provided information.

Any Government Information Service must be structured and presented asintuitively, and non-legalistically, as possible to remove, as far as possible,the need for costly training and help (although this can be provided at least inthe mid-term via call centres).

Such a system would clearly help the Government realise its aims as set outin the government.direct Green Paper and summarised in the Preface to civil.justice.Its implementation is also towards the far end of the 5-15 year spectrum coveredby the paper, and beyond. Once implemented, the fully-fledged GovernmentInformation Service should be available free of charge to all citizens. Accessto it should be seen as a fundamental right in an open, democratic, modernsociety.

Note the caveat that the Government Information Service should consist ofguidance, rather than interpretative, systems. In the civil justice domain,legal advice, except of very simple matters, should remain the remit of legalpractitioners.

E. Infrastructure

Sharing of facilities should definitely be encouraged, as should the sharingof data as described above. Call centres, server and database farms, cabling,communication links and so on can be shared to save money.

The overarching design of the new Government Information Service, which willbe a virtual private/public network (certain aspects will be publicly availablevia the Internet, other aspects will be available only to Government via theGovernment Secure Intranet), must aim as far as possible to integrate and shareinformation sources, hardware and communication links in a cohesive,inter-operable architecture.

At all costs a piecemeal system, consisting of many disparate elements gluedtogether without any structure, must be avoided – the cost would be farhigher, the likelihood of breakdown in the ‘system’ would be greater, andthe capacity for future growth and modification would be massively curtailed.

The system must have as few limitations built into it as possible or it islikely to be both unwieldy and obsolescent before it is fully in use.

There needs to be a significant budget for simple error – cost write-offsdue to the learning process. It is unlikely that this will be got right firsttime round and, when mistakes are noted, they must be rectified rather thanbuilt around.

The time, effort and investment to design and implement such a flexible,overarching system, consisting of cohesively interoperable and interconnectedcomponents, should be accepted and built into the strategy now – if this is tobe any sort of reality in five years’ time work needs to begin now – to savehuge cost, inefficiency and breakdown later on. This is accepted in the Prefaceto civil.justice in the section entitled The Need for a Long-TermView.

The structure should have at its core Internet technology and should aim tobe delivered via a web front-end on computers, televisions, kiosks and whateverother access point will be available in the future.

The systems must be interactive, to allow data input, editing and managementas well as search and browsing, where possible through the same web browserinterface, and should be aimed at government workers (justice workers etc) aswell as at members of the public. Both groups will share and use much of thesame information base. The primary method of access to the information baseshould be seen to be the Internet, but in the mid-term access to voice and videocall centres should be made available as support mechanisms.

F. How should the above, so far as it relates to civil justice, befinanced?

Either through the public purse or, as necessary, through public/privatepartnerships.

Given the fundamental importance of an effective and high-quality system ofjustice, and the inherent difficulties of applying the usual PFI criteria andcost/benefit analyses, we strongly favour public provision.

There will be a large initial investment required to put in place theinfrastructure, but running costs should thereafter be considerably lower thancurrent operating costs due to efficiency savings and increased productivitythrough the use of IT. It must be recognised, however, that savings may not beachieved until the much longer-term, and also that the introduction of IT forthe purposes of making the system better (the only legitimate purpose)should not be premised on such savings: if they do not occur, nonetheless thesystem will be better, ex hypothesi.

G. Regulation of non-governmental online legal guidance andintepretative systems

Suitably qualified non-governmental individuals and organisations should beallowed to make legal guidance available via the Internet, either ascommoditised general advice, or by way of expert systems which guide usersthrough a series of questions and answers leading to (relatively) tailoredadvice. It may even be that certain individuals and organisations will choose topractise online via video-conferencing, live or archived discussion forums, orvia voice link. Or they may set up telephone call centres.

Due to the risks, perceived and actual, involved in this online disseminationof legal guidance, the Government, either directly or through appropriateagencies (such as the Bar Council and Law Society), might legitimately introducea mechanism of formal accreditation whereby individuals or organisations wishingto furnish legal guidance via the Internet (whether free or charged for) mustprovide online certification – subject to verification by the appropriateagency – which makes clear their qualifications and experience in theparticular field advised upon.

Competition law rules may become involved to prevent smaller firms and solepractitioners, unable to disseminate their core work online for no fee, frombeing squeezed out of the market.

The question of the extent to which general online legal guidance, orguidance tailored to the circumstances of the individual or organisation byexpert systems, should be deemed to be legal advice which can be sued uponshould be explored and legislated on.

Call centres run by Citizens’ Advice Bureaux, or others, should also becarefully regulated.

Why should this be done?

• increasing efficiency and so cutting costs
• improved justice and access to justice;
• greater public confidence in the justice system.

H. Underlying aims of the above proposals

The proposals set out above have as their aims:

1. The bringing of the four benefits set out in the Preface to civil.justice namely:

• increasing efficiency and so cutting cost;
• better productivity and so reduction in delays;
• improved justice and access to justice;
• greater public confidence in the justice system (and in the system of government).

2. Greater public awareness of the law, legal rights and legal responsibilities.
3. As a result, the potential for a higher incidence of dispute avoidance and early dispute resolution.

I. Caveat

IT should not be the only factor taken into account when formulating astrategy for the civil justice system over the next 5-15 years.

IT is undoubtedly one of the tools we can use to deliver necessary changes.It should not of itself dictate, by reason of what it makes possible, what thosechanges should be.

The key question is what, in the modern world, a civil justice system shouldbe and what it should deliver. Does our current system measure up and, if not,what should we do to change it?

Factors more fundamental than IT are involved: the system’s underlyingpurpose, scope, structure, function and procedures, and the laws governing ourinteraction with one another. These, as well as IT considerations, should besubjected to rigorous analysis as part of the long-term re-engineering of theway in which we interact with the courts and the law.

Government policy already in the making and touched on in the paper may haveprofound effects: abolition of legal aid, advent of community legal service,‘public defenders’, changes to rights of audience and so on. These are allpolitical matters.

All changes to the civil justice system should be viewed as potentiallypolitical: they should certainly be managed and, if change is intended, itspolitical significance needs emphasising.