If Richard Susskind’s latest work, Transforming the Law, is regarded by a reviewer in this issue as a ‘must-read’ then it is not the only ‘must-read’ which has become available to members of SCL in recent months. The Court Service has produced a consultation Paper, Modernising the Civil Courts, which sets out a series of recommendations for consideration, questions which require a response, and immediate outlines of pilot schemes for immediate implementation. This document may well be the most important consultation and analysis that those members of SCL who are interested in the future of litigation with the use of technology have ever come across. The Society sees many of its ideas reflected within the pages of the Consultation Paper but there are important detailed issues which require detailed and considered responses. The SCL Vice-Chair Laurie West-Knights is to chair a working party which will produce the detailed response to the proposals within the time frame allowed for consultation.
Although we produce below a summary of the proposals and much of what is proposed is outlined in the speech of David Lock at the SCL Award Presentation (see p 3), I can only urge members to obtain a copy of the full text of the Consultation Paper and consider whether they would wish to offer their input to the SCL Working Party (via Ruth Baker at ruth.baker@scl.org) or whether they themselves would wish to respond.
Lord Justice Brooke, the President of SCL, served as a member of the Court Service Board which produces the consultation Paper said “the ideas in the Consultation Paper bring to life everything the Society has stood for in relation to IT and the law since it was founded in 1973. I know that many members of the Society, either as individuals or through the firms for which they work, have an immense amount of know-how to contribute, by which they can make good ideas better still. I hope there will be a massive, well-informed response to this Paper both by the Society itself and by many of its members.”
The consultation period began on 15 January 2001 and the deadline for responses is 21 April. Responses should be sent tomcc.response@courtservice.gsi.gov.uk or by post to Modernising the Civil Courts Team, Court Service Headquarters, 6th Floor, Southside, 105 Victoria Street, London SW1E 6QT.
Some Themes of the Consultation Paper
The overall theme of the Paper is clear. The Court Service is looking to increase efficiency and improve service in the light of the changes made by the Woolf reforms, which emphasised the implementation of technological change as a means to improve the delivery of service. The Paper recognises that technology is not the solution in itself and a number of elements in the Paper do not touch on technology per se. For example, in recognising that there are some strange distributions of county courts geographically, the Court Service sees the potential for closure or amalgamation; that proposal may be encouraged by the capacity of new technology to deal with matters remotely but does not really spring from that.
There are detailed questions on which many SCL members will have strong views but which will pass the majority of practitioners by. For example Question 30 is “what are your views on the potential for electronic filing?” and Question 31 is “how do you think XML schemata should be developed in order to secure the widest possible uptake and exploitation?” The Paper includes a detailed scenario for the use of technology by the practitioner in his work with the courts (see box). Practitioners and suppliers will note that the possession and skilled use of a laptop (or similar) will be de rigeur under the new regime.
As the Paper points out ‘much of the courtroom of the future technology is the technology of today’. The Paper recognises that implementing that technology in the courtroom will not be an easy task because of the objectives of keeping costs and the resources of the courts proportionate to the amount in dispute. However, SCL members will note that the Paper, while paying lip service to the consultation on the matter, seems to assume the implementation of wide-ranging electronic filing within the courts. It is only when considering more complex technology that questions of balancing benefits against costs are seriously debated within the Paper.
It seems abundantly clear that we are within a very short time of the implementation of electronic filing and may well see the emergence from this consultation process of detailed compulsory requirements relating to the maintaining of records within private practice and the manner in which documents are exchanged and filed at the court.
If what emerges is not to your liking and you have not contributed to the process, then you have but yourself to blame.
Scenario 6 – The Practitioner The litigator might have unprecedented access to their court caseload, and might be able to assess via the internet the stage each case has reached and the next step required. The litigator may opt for reminders to be sent by the court system when case management stages are due, and might receive electronic notification of overdue steps. The litigator might be able to complete the information required for allocation via the internet and be able to file documents in court electronically. Court systems might acknowledge receipt of filing, and the use of ‘smart documents’ might ensure that the case progresses automatically to the next stage. The filing of documents electronically should support the presentation of documents in court. The electronic access should permit the completion of transactions for issue and filing around the clock, enabling the practitioner to link from desktop to court at any time. The development of video conferencing facilities and the growth of the telephone conference at primary court centres may provide more opportunity for case management conferences, applications and other short appointments to be completed without attendance at court. Improving video technology and new court infrastructure may ultimately mean that such attendance can be from the desktop, and should include the display of documents from the court record. When attending court the practitioner should have access to a communications infrastructure which allows the use of portable technology to put them in touch with their office or with other information sources such as legal information services to which they subscribe. |
Executive Summary Extracts
The Context
1. Our programme of work Modernising the Civil Courts (MCC) [sic] aims to improve the range and quality of services to the customers of the civil and family courts in the 21st Century. We will make full use of the opportunities afforded by new technology to make radical changes to the way we do business.
2. The programme takes its lead from the Government’s Modernising Government agenda and the vision for civil justice which was set out in the Lord Chancellor’s Department’s Paper civil.justice 2000.
3. MCC will be an important vehicle for the Department to meet its ‘information age’ targets for electronic service delivery by 2005. While the full impact will be felt beyond the next three years, it will help the Department to meet its strategic objectives and fulfil the Public Service Agreement for 2001-04, notably the targets to improve customer satisfaction, improve enforcement and achieve better value for money from the estate.
4. MCC is building on the considerable progress already achieved through the civil procedure reforms that were launched in April 1999. It will also help the courts to cope with the increased demands that have been placed on them as they have taken on a proactive case management role.
5. Improved information and technology are at the heart of MCC. They will allow new ways of doing business, a greater variety of services for customers tailored to their particular needs, and better communications between the participants in the justice system.
Meeting the challenges – the key changes that we envisage
6. Many transactions, like issue of claims, payment of fees and other funds into court, and the initiation of various enforcement procedures, can be carried out online (or, indeed, by telephone) in the future. So too can many of the interim stages of defended cases. This will be a key area for piloting changes over the next few years.
7. Much of the administrative work of the courts such as claim issue, fees and cash handling, administration of enforcement and provision of general information and advice about the courts (which together accounts for the majority of their activity) is capable of being centralised, leaving a network of hearing centres to focus on their core work – hearings, listing and case management.
8. There is great potential to provide people with access to the information they need from the courts through the Internet, information kiosks and call centres. This will allow twenty four hour access for many information services. We will work closely with the Community Legal Service and other Government Departments to ensure a joined up approach to provision of information and advice. We are determined to ensure that the courts are able to meet the diverse needs of the population.
9. Again through partnerships, we will seek ways of maintaining hearings for small claims, housing and enforcement in areas that do not have a permanent courthouse. As a result of the wider variety of ways of accessing information and the partnerships for provision of administrative services and some types of hearings, we believe that people in rural areas and others without easy access to a court building will find that they have better access to services in the future.
10. [Rationalisation of court estate.]
11. There are already options being developed for the London estate, which could not only secure better value for money, and improved customer service in well positioned hearing centres, but could help us to pilot the partnership approach to provision of services.
12. People who do not have access to a computer or who lack the skills to use one will not be excluded from the services provided by the civil courts. Hearing centres will maintain a ‘front end’ so that people can still initiate proceedings and transactions at the court. The work may then be swiftly transferred to central operations and processes efficiently. We will also work to develop partnerships with other agencies like Magistrates’ Courts, the advice sector and local authorities to provide the face to face services that people still need, where there is no permanent county court building – the ‘supplementary office’ concept.
13. The courtroom of the future will be integrated with case management systems, legal information and the electronic file. Judges will be able to communicate electronically with court staff and will have the benefits of digital audio recording proceedings. There will be more access to video conferencing facilities and scope to present documents electronically. We will, on the civil side, be able to learn from the experience of the Crown Court Programme, where work is more advanced than MCC. Where common systems can be developed (for example in listing of cases) they will be.
14. We are conscious that in family work and probate … while there is much that will benefit from the opportunities afforded by new technology in the same way as civil work, there are special considerations which will need to be addressed. More face to face contact is likely to remain necessary, there is more reliance on original documents, many cases are likely to have a longer life. There are particularly sensitive issues around the needs of children in family cases, and those of the bereaved in probate.
15. Our conclusions about how enforcement should be managed in the future are dependent on the findings of the Lord Chancellor’s Review of Enforcement. On the assumption that civil enforcement by means of bailiff’s warrant remains with the Court Service, we see real opportunities to create a focussed enforcement service where bailiffs are field based, equipped with technology which minimises paperwork and office attendance, and supported and managed by an administrative centre which administers all types of enforcement, rather than by individual courts.
16. We will need to ask questions about how services are delivered. Are they best managed from within the public sector, or is there scope for private/public partnership? The vehicle for this analysis will be the Government’s Better Services initiative.
17. The civil courts are financed by fees charged to customers. We have a duty to ensure that those fee payments are put to best effect. Better value for money will be delivered to fee payers who fund the civil and family courts, through greater choice of services, lower transaction costs, and a leaner estate.
The benefits to participants in the justice system
18. We believe that the benefits of MCC to court staff and the judiciary, and to the customers – litigants, the professions, voluntary groups, and potential users of the courts – are potentially immense. There are sections in the report on implications for staff and the judiciary, and throughout, we hope, there is a strong sense of how our customers will benefit …
19. The Court Service is also developing plans to undertake a regular national survey of customers to establish levels of satisfaction and to identify where the need for improvement in service is greatest. The survey will cover the Crown Court and tribunals as well as the civil and family courts. It will help us to establish where we really need to focus our efforts under MCC.
Taking the MCC Programme forward
20. We recognise that there will be many challenges to staff, judges, the professions and litigants in adapting to the new ways of doing business in the courts. And for that reason, changes will be piloted and introduced carefully, and in manageable stages.
21. Improving support to the judiciary is central to the success of MCC, and to the purpose and objectives of the Court Service. To this end we have formed a judicial working group, led by Mr Justice Cresswell, and including judges from a range of jurisdictions, to establish judicial needs and priorities in the new IT-enabled environment …
22. We are aware that some of the proposals in this paper would require changes to rules and procedures; some may even need primary legislation. We will need to ensure compatibility with the Human Rights Act. We will be exploring these issues within the Department and with others with an interest.
23. We have secured funding to take the MCC programme forward, although it will be subject to approval from the Office of Government Commerce (the ‘e-Envoy’) at key stages.
24. Our early priorities for MCC are continued piloting …, using the potential of the County Court Bulk Centre to take on more administrative work, with more work transacted on-line, and the development of new ways of providing service, such as telephone and e-mail.
25. Simultaneously, the Department will begin design and development of web based applications and a new Information and Communications Technology Infrastructure, which will support our aim of providing staff and judges with access to all case records, judges and their courts with technological support, and parties and public access to information and services they need.
26. We wish to bring forward change with the support and understanding of our ‘stakeholders’ …, although we understand that for some change will not be welcome. To secure that broad support, we have consulted informally with many stakeholders in reaching the stage, now, when we can consult formally, and we will continue the dialogue as the programme progresses.
27. Our aim is to provide a blueprint for the future of the civil and family courts and a detailed implementation plan by early summer 2001 that will take account of responses to this consultation paper.
