The Civil Justice Council’s Online Dispute Resolution Advisory Group has published its first report, ‘Online Dispute Resolution for Low Value Civil Claims’. The report recommends that a new ODR system should be developed in England and Wales to increase access to justice and to streamline the court process. If the report’s recommendations are followed, the civil justice system could see profound change.
In April 2014, the Civil Justice Council set up a new advisory group, chaired by SCL’s President Professor Richard Susskind OBE, to explore the role that ODR can play in resolving civil disputes. The report published on 16 February reflects that Group’s views. It seems likely that it will be the first in a series as the report raises many issues that only further investigation and some form of pilot scheme can effectively resolved.
It is hard to overstate the impact that the report might have on the administration of civil justice. While the Group’s terms of reference were limited insofar as the principal item there was conducting a review of the potential and limitations of the use of ODR for resolving civil disputes of value less than £25,000, the Group has taken advantage of another item in those terms, namely ‘to kick-start the policy process of considering options for ODR provision and regulation’.
The report itself can be downloaded from the panel opposite or from the main dedicated site at www.judiciary.gov.uk/reviews/online-dispute-resolution, which includes a great deal of supporting material. Since the main body of the report covers only 25 well-spaced pages, anyone interested in this area (and that should include all litigation lawyers at least) is well advised to read it in full rather than relying on the partial press coverage.
The report’s principal author, Professor Richard Susskind, said:
‘This report is not suggesting improvements to the existing system. It is calling for a radical and fundamental change in the way that our court system deals with low value civil claims. Online Dispute Resolution is not science-fiction. There are examples from around the world that clearly demonstrate its current value and future potential, not least to litigants in person. On our model, an internet-based court would see judges deciding cases online, interacting electronically with parties. However, our suggested online court has a three tier structure, and we expect most disputes to be resolved at the first two stages without a judge becoming involved.’
The report recommends that Her Majesty’s Courts and Tribunals Service (HMCTS) set up a pilot as soon as is practicable with a view to rolling out an online court based on the findings.
The Working Group’s report explores the case for ODR and the sorts of issues that need to be resolved if it is to fulfil its potential. It provides a series of case studies of public authorities and businesses that are already employing ODR, both in the UK and internationally.
The report offers a fresh approach to access to justice. Rather than streamline the existing court system and focus exclusively on dispute resolution, the report recommends a three tier online court that turns the existing format on its head by focusing on dispute avoidance and dispute containment as well as on dispute resolution.
In the Working Group’s model the route taken by those seeking redress for a problem or grievance is via three stages, although the dispute may be resolved at any of them:
- Tier 1 – Dispute avoidance – online evaluation of the problem with the support of interactive aids and information services. This will help people diagnose their issues and identify the best way of resolving them.
- Tier 2 – Dispute containment – online facilitation. Trained, experienced facilitators bring an objective eye to the problem and try to help the parties reach agreement on resolving the issue.
- Tier 3 – Dispute resolution – Online judges. Professional judges will decide suitable cases online, largely on the basis of papers received electronically, but with an option of telephone hearings. The decisions would be as binding and enforceable as court rulings.
The report advocates that pilots should be undertaken to test online courts in practice, possibly focusing on small claims of low monetary value. The pilots would take place following consultation with consumer groups and the legal profession. Some changes to the Civil Procedure Rules are likely to be needed to allow the pilot to go ahead but detailed project planning will consider whether legislation is required.
The working group also looked at policy and legal issues arising from an online court – such as whether it offers a fair hearing process, whether it excludes people with no easy access to technology and whether it might encourage vexatious litigation. Each of these issues is addressed in turn.
The CJC has authorised the Group to continue its work so that it can offer expert advice and support to assist the developmental work. The report suggests the first phase for this would be progressed in 2015-16 with an online court system pilot, ahead of an anticipated full roll-out in 2017.
Laurence Eastham writes:
This report is a big deal. I am genuinely impressed by its sharp analysis and ambition, not to mention its relative brevity.
The headline is likely to be the recommendation for the establishment of a new, Internet-based court service, known as HM Online Court (HMOC). But the suggestions for online facilitation, using ‘trained and experienced facilitators, working online’ who will engage in a process which is ‘inquisitorial rather than adversarial’ may have more impact even though it is not overloaded with sexy new IT. I suspect that the suggestions as to changes in judicial roles will appeal to many- and ruffle some feathers.
It is important to realise that, notwithstanding the limited terms of reference (so-called low value claims), this report looks at ODR in a wider context. The report suggests that many civil claims will, in due course, use the HMOC route or use it for part of the proceedings.
My reservations on reading the report arise from the slightly lukewarm Foreword from the Rt Hon Lord Dyson, the Master of the Rolls. Since I was abroad at the time of the press briefing on Friday 13 February, I may have missed out on a more ringing endorsement from him there – I shall read the reports from those who were there with interest. Without his very enthusiastic backing, the Group may find that their radical ideas and ambitious timetable sink in a miasmal Ministry of Justice bog. I really hope that the Group don’t have to battle to see this through but I suspect a battle or two will be necessary.
I do not doubt that the report’s recommendations, or something very like them, will see the light of day; it is just a question of when.
