IT and the London Civil Courts

I have been interested in the interface between technology and the courts for 18 years. For the last three years I have been the Judge in charge of Modernisation, representing the judiciary on the small Court Service board which is driving the £300 million court modernisation programme forward. And since the beginning of October I have been Vice-President of the Civil Division of the Court of Appeal.

Recent experience has taught us that senior judges have simply got to become more involved in matters of court administration than ever before. I see an important part of my new role as helping the Master of the Rolls and the Head of the Civil Appeals Office to devise coherent three-year plans for the improvement of the services we provide in the Court of Appeal. Such plans are common in overseas jurisdictions, where they manage the resourcing of their courts much more sensibly.

I do not want to say very much about the past. This summer Butterworths published a book of essays in honour of Sir Brian Neill, and I set out the very sad history of the years since 1985 in my contribution to that book. When you read the book, you will see that I did not mince my words. What I want to do is to describe where we are now, where I hope we may be going, and why I think that the solicitors’ profession has got a very great deal to do if it is to respond effectively to the challenges that court modernisation is going to pose to us all.

I have a four-pronged message. First, that imaginative, well-planned use of IT is now absolutely central to the efficient and economic delivery of legal services. Next, that IT is far too important to be left to IT managers and IT suppliers. Thirdly, that external communications by IT with other firms, with the Bar and with Government agencies, and with clients and with the courts, is going to become increasingly important. And finally, that solicitors’ bodies have a central educational and leadership role to play in all this.

We cannot go on as we are. Our court system is far too slow and inefficient and expensive. Quite soon civil and family justice will become even more expensive because current Treasury policies seem bound to lead to stiff increases in court fees. In civil justice our courts’ back offices are awash with paper, and the paper files go missing, or are in the wrong place, or are back to front. An experienced circuit judge at Central London told me the other day that he almost invariably does not receive important documents until the court hearing begins. Demoralised staff arrive, get trained, and then move on in search of more appropriate working conditions at a better rate of pay.

I intend here though to concentrate on the modernisation of the civil and family courts in London.

Poor Relations

In the eyes of politicians, civil and family justice seem to be treated as the poor relations we don’t much like to talk about, when compared with criminal justice. Last year, the Treasury said that it was making £1.1 billion of new money available for criminal justice IT between 2003 and 2006. For the first time ever, the three Government departments who have responsibilities in that field were being forced to plan together how that money should be spent.

Because of the years of chronic under-investment, the Court Service received a very big block of money – about £165 million in all – for installing basic IT infrastructure into all our Crown Courts. Another £60 million is being spent by the Court Service on other IT projects in the criminal justice field. But despite all this investment, in three years’ time we still will not have any of the modern case-handling software in our criminal courts that will be essential if judges and court staff are not going to be completely swamped by all the material that will increasingly be sent to them by electronic means.

As I have said, the civil and family courts are very much the poor relations, unless they happen to be on a combined court site, or are close to a Crown Court centre. Although the Modernising Civil Courts programme had been going full speed ahead for 18 months since a consultation paper was issued in January 2001, not a penny of extra money was allocated to civil and family court modernisation in the last Government spending review. As befits a poor relation, the subject was not even mentioned. This has meant that all our plans were effectively put on hold for 12 months until we learned just how much or how little money the Department would be able to make available to us for the next three years from its block grant.

Originally we hoped it would be £100 million. In February of this year we hoped it would be £95 million. In the end we were told in July it would be £75 million. I completely understand the reasons why the grant was reduced. The Department had been trying to do too much too fast, and it also had to confront a totally massive unbudgeted overspend on legal aid expenditure. Somehow or other it had to balance its books. Yet again court modernisation suffered.

Our underlying difficulties stem from the Treasury’s insistence that civil and family justice is simply a commodity to be bought and sold in the market-place. The Treasury sees no reason why in a common-law system of justice individual litigants should not pay the whole of the cost of the civil and family justice system out of the court fees they pay, unless they are on income support. I and other senior judges are now involved in a thoroughly constructive debate in which we are exploring with Government how we might arrange these things on a more sensible basis in future. But we have to do the best we can at present with the legacies of existing policies.

At all events, we do now have £75 million to spend. About £30 million is being spent on installing IT infrastructure into about 55 more court centres. £6.5 million has been allocated to the Royal Courts of Justice. This term includes the Principal Registry of the Family Division. We will be able to complete the IT network which is already quite far advanced. In London, the Central London County Court, the Mayor’s and City Court, the London Support Centre at Haywards Heath, and the county courts at Lambeth, Bow, Wandsworth, Brentford and Romford will all receive IT infrastructure between April 2004 and April 2005. On present plans Willesden, Bromley and Clerkenwell will follow in 2005-6.

Because of the cuts in funding, we are having to use the cabling that is already in the back offices of most of these courts, so that it will have to be upgraded at some future date. But the implementation of these plans should leave us with fully networked courts, equipped with modern Microsoft Office software, and with the network extending to the judges’ rooms for the first time. A very large sum of money is also being spent on upgrading the Oracle database software used by the courts, so that we will then have a single fully integrated modern database instead of 220 different obsolete databases, none of which can talk to each other.

E-mail

What does all this mean in practical terms? Once a court has settled down with its modern infrastructure, it will be added to the courts on the Court Service Web site which are advertised as being able to receive e-mail traffic. A new CPR Practice Direction came into effect this month. This permits specified e-mail traffic to and from specified courts. At present six courts are specified: the networked county courts at Preston, Walsall, Leicester, Basildon and Coventry and the Commercial Court in London. This time next year the list will be very much longer. I am already exploring what we will have to do in the Civil Appeal Office, which is fully networked, to qualify for specification. The e-mail guidance on the Web site lists the many categories of documents that can now be sent to the court by e-mail. The Practice Direction makes it clear, however, that we are not yet ready to accept receipt by e-mail of any documents for which a fee has to be paid. That is for the future.

Since last March the Commercial Court has been running a pilot scheme for e-mail communications with the court. In addition to the e-mail traffic to the court’s offices, which I will describe, there is also e-mail traffic with judges or their clerks. This varies in extent depending on the idiosyncrasies of the particular judge or clerk.

Some Commercial Court judges always use this means of communication with the parties in major cases, as I have done with major commercial appeals in the past. For the big Kuwait Airways appeal, I gave one direction to the parties by e-mail on Saturday morning, and a follow-up direction at 6 pm on Sunday night. On the following Tuesday morning the documents were all in shipshape order for the court when the appeal opened. We did not have to waste half an hour finding out what documents were there and what we needed which wasn’t there.

So far as the Commercial Court back-office is concerned, experience has shown that the listing office has so far received and sent many more e-mails than the other offices. About 90% of these messages are sent by counsels’ clerks to the court’s two listing clerks by name. One of them sends and receives about 500 messages each month. The other sends about 160 and receives about 240.

In addition, about 20-30 e-mail messages are sent each month to the court’s listing address, together with between 10 and 20 messages to which skeleton arguments are attached. These, too, are mainly from counsels’ chambers. The listing office receives very few e-mails from solicitors. Lord Justice Thomas has told me that so far as listing is concerned, the effect has been remarkably good. An immense amount of time has been saved, and fixing hearing dates and other queries have been dealt with much more easily.

I am told that the higher e-mail usage in listing can probably be put down to the fact that the listing clerks circulate the daily list to counsels’ chambers by e-mail, and that they have close working relationships with many of the clerks there. Chambers’ clerks now e-mail rather than telephone when fixing a case, and the Listing Office also fixes hearings by e-mail now. The listing clerks sometimes use e-mail in reply to letters: they do not merely reply by e-mail when they receive an e-mail.

I remember that in 1985 when I chaired the Bar’s computer committee we pointed out the savings that could be made by arrangements like this. Eighteen years later it is just starting to happen.

During the pilot period since March, the experience of the Commercial Court Registry has been quite different. It only received about one e-mail a week: either general correspondence or occasionally a draft order for a judge’s approval. Their e-mail address has now been included on their letters and compliment slips. They generally only use e-mail to reply to e-mails received. The experience of the other offices, including the Admiralty Marshal’s Office, has been much the same. The court offices’ e-mail addresses are in the process of being added to all their letters, faxes and compliment slips, except for the listing office which did this already. Ever since the middle of May copies of a notice by Mr Justice Thomas about using e-mail were handed out to solicitors at the Registry counter, and the court’s various e-mail addresses are also displayed on public notice boards. It doesn’t seem to have had much effect.

The pathetic take-up of this facility by solicitors and their staff merely replicates our experience with solicitors in other parts of the modernisation programme. Lord Justice Thomas believes that the court can only expect a proper take up of the e-mail facility outside the listing office when it has an electronic file. This is the next topic I want to address.

Electronic Files

In this jurisdiction the judges have been telling the Court Service we need electronic filing facilities since 1991. Two years ago a working group of judges, headed by Mr Justice Cresswell, published a report called “Modernising the Civil Courts: the Judge’s Requirements”. They said there was a need for an integrated electronic court record, or database, which would feed in turn an electronic listing and diary system, an electronic case management system for court staff and procedural judges, and an electronic court file for the use of judges at contested hearings and trials.

The logic of this report was unanswerable. It pointed out, for instance, how much more easily the judges could manage complicated family cases (where there is a massive legal aid overspend) if only they were given the tools for the job. The message of the report was accepted and adopted by the Court Service as a central part of its overall modernisation plans. But the Treasury did not allocate a single extra penny towards making that plan a reality before April 2006 at the earliest.

I am not a politician, although I come from a political family. But I know enough about politics to be aware that our civil and family courts have suffered and still suffer from the fact that our MPs have never taken any great interest in what goes on in them. They do not know about the sub-standard working conditions which many of our devoted court staff have to put up with day after day. Experienced visitors to the courts’ back-offices are astonished when they see how far we are behind. But in the 12 years in which I have been actively involved with judicial IT, I have only ever been visited by one group of politicians who wished to hear from me what they ought to do to improve the quality of their courts. This was a delegation from the State of Victoria. No wonder that their new court building in Melbourne is an asset of which every citizen in the State can be proud. Their elected representatives wanted this to happen.

In April I went to Australia via Singapore. In Singapore a political decision was taken about ten years ago to raise the standards of the court system until it became a centre of international excellence. A chief justice was appointed who had had wide business experience both as the senior partner of a major lawyer’s firm and as the head of a major bank. He brought his business knowhow into the task of modernising the courts, and he received 100% political backing. I heard what was happening at a seminar I attended in Washington DC in 1997, and I gave a full report to our Government about it then.

Six years later the work is finished. Electronic filing is mandatory and universal. Bureaux have been set up to help smaller firms and litigants in person to comply with their filing obligations. While I was there, I visited the Singapore equivalent of a Queen’s Bench Master in his chambers, and he showed me the electronic court index from which he could draw all the documents in a case from the court’s electronic database. When he made an order, the parties would take away a printed copy of it with them.

In Australia the courts are making giant strides in the same direction. I visited the Registrar of the Lands Court in Sydney. She told me that electronic filing is voluntary, but 60% of the court’s users now do all their filing electronically, and this provides huge savings in court resources. In Melbourne I visited the new state of the art county court, whose modern facilities made me drool with envy. Although I was told that electronic filing would not be available on a voluntary basis until September, all incoming documents are logged in to the electronic records system. As a result there is a popular facility whereby solicitors can search the court Web site to see if a document, such as a defence, has been filed. I was told that as a result there has been a massive reduction in the number of telephone inquiries the court has had to handle.

Bows, Arrows and Optimism

Coming back to England, we are doing our best in our civil and family courts with a peculiar combination of obsolete databases and modern office software to provide useful aids to judges and court staff during what may be a very long transitional period until we are provided with modern court software that is fit for its purpose.

About £600,000 has been allocated to the creation of civil business templates of one kind or another, and judges and Court Service staff are now working together to see how best this money might be spent. We are also doing our best with unsuitable software to construct an electronic diary system for the use of courts. There is another small project concerned with the development of on-line forms and methods of securing electronic payment. In addition, the Money-Claims On-Line (MCOL) facility will continue to be available for both claimants and defendants in simple debt claims for not more than £100,000 with not more than two defendants, and we are developing PCOL (possession claims on-line) to provide a similar facility for simple possession claims.

I regard most of this as nursery slopes stuff for a great country like ours, but at least we are at long last making a start. I remember Sir Brian Neill, to whom the new book is dedicated, saying in 1991 that in matters of IT the treatment of our judges was equivalent to a scenario in the Gulf War in which the headquarters staff three hundred miles from the front were equipped with the latest modern technology while the frontline troops were given bows and arrows. Twelve years later, it seems legitimate to use this analogy again when I compare the present parlous provision for our civil and family courts with what is being provided for those doing work of considerably less importance than the delivery of justice in many other fields in the public and private sectors of our economy.

When Lord Woolf and the other members of the senior judiciary were asked to approve the way the available funds were to be allocated, we asked if £500,000 might be set aside for experimenting with an electronic court file in the Commercial Court. This request was granted, and I know how much the judges and staff of the court have benefited from the discussions they have been having with the partners and IT managers of a number of City law firms to see how best this money might be spent. Again, things have been badly delayed because of the continuing uncertainties about our funding, but this allocation remained intact when the total funding was slashed, and I hope that in the next 12 months this pilot project may be well underway, and that we can begin to learn from it.

I hope, too, that in five years’ time our dream of a new court building on the Queen’s Building site, as the principal home of the Commercial Court, the Technology and Construction Court and much of the Chancery Division, may become a reality. We have seen many false dawns in the past. But there really do now seem to be some grounds for optimism, although five years is still a long way away.

Solicitors’ Apathy

In some ways it may prove to have been just as well that we have not tried to go too far too fast, because I am sorry to say that the solicitors’ side of the profession has not yet showed up very well as our modernisation plans have driven forward, judging from the experience of the Preston e-mail pilot, MCOL, the Walsall business centre, and the Court of Appeal research project.

I visited Preston 13 months ago. A pilot scheme for direct e-mail communications with district judges had been running for about 18 months. A consent order for the release of clients’ funds from court could be obtained by e-mail the same day, whereas it usually took 20 days to obtain. The take-up of this service by local solicitors’ firms was pathetic (on average less than four e-mails each day). The use of the service by one very small firm represented 50% of its total use. The senior partner of that firm told me that it was marvellous, and it enabled his firm to provide a far better service to its clients. Many other local firms did not use it because they found it too complicated, or because they were not brave enough to communicate their efforts at draft orders to district judges direct, or because their firm’s IT systems could not cope with it, or because their firm’s business practices could not cope with it, etc etc.

I said that it reminded me of the excuses barristers’ chambers used to make for not taking on able female or black and Asian tenants. There was an uncomfortable hush in a crowded courtroom that evening at Preston when I told 80 local solicitors that the days of successfully charging travelling time and waiting time might end abruptly if a costs judge thought that an item of business could have been done more economically by e-mail and their firm had unreasonably refused to co-operate. Since then, the take-up of the service has increased, but not by very much.

Next, Money Claims Online. This is already winning international applause. It is a system for issuing simple money claims for up to £100,000 online with not more than two defendants, and with the facility for defendants to respond to the claim online. It represents the beginnings of the future electronic court file. Its use will achieve very great savings at the court end of things because what is on the claim form does not have to be re-keyed manually. And it saves solicitors the hassle of posting or delivering claim forms to the court.

Two or three solicitors’ firms are major users of MCOL, and some of these are already attracting business from new clients once they are known to be using this remarkable service. But in general the take-up of MCOL by solicitors’ firms has been very disappointingly low. A recent survey showed that 5% of the total use was by solicitors; 20% by businesses acting for themselves; and 75% by litigants in person.

Thirdly, the Walsall mini-business centre. This was a really brave attempt by the Court Service to experiment by moving the back-office of a county court 200 yards down the street. Its purpose was to test what IT might achieve if it were used more intelligently in support of civil litigation. We learned a lot of very valuable lessons, but in general the involvement in the project by local solicitors was very disappointing. For example, only 21 e-mails were received from local solicitors during the entire month of May. Another big opportunity was missed.

Finally, and coming closer to home, I am determined to do all I can to modernise the business of the Court of Appeal and to make its processes even more helpful for those who use them. When I was sitting in vacation, I astonished a barrister’s clerk by telling her not to bother to bring three copies of counsel’s written submissions over to the court office at 5 pm just as all the staff were going home. If she e-mailed it to me, I would e-mail it on to the other two judges, and this is what happened.

In my in-tray is a research report on the work of the Court of Appeal. Its authors had tried to find out from solicitors what their firms thought of the service the court was providing and the ways it might be improved. 20 letters were sent out. Only seven firms bothered to answer at all. In our efforts to improve our service to their clients we are once again frustrated by solicitors’ apathy. Now that I am Vice-President of the court, I intend to write a similar letter to the senior litigation partner of each firm out of a representative sample of 30 firms who use the court. I may well go on writing until I receive a reply.

I am bound to say that there is a very great reluctance to change among many solicitors’ firms, and a striking unwillingness to help those of us who are trying to achieve a better service for those who use the courts. We have no hope of attracting greater investment from taxpayers’ funds if solicitors simply will not use what is already on offer.

I have read the excellent report of the Working Group of members of the LSLA and members of the Bar which was published six months ago. I agree with most of what is said. But, as I read it, I reminded myself how depressed I have been by the lack of take-up by the solicitors’ profession for what has been made available at taxpayer’s expense so far. In view of the Commercial Court experience with e-mail, I was amused to read in the report that 50% of respondents to a recent questionnaire from your association said that it would be very important to their practice to communicate with the court by e-mail. In view of the experience at Preston, I view with some scepticism the suggestion that there is a consensus among practitioners that they would like to be able to issue all applications on-line. And in view of the pathetic take-up by solicitors of the facilities provided by Money Claims Online, I react rather slowly to the suggestion that there should be an even greater investment of taxpayers’ funds in enlarging a service which solicitors are by and large completely ignoring at present.

Partners in Planning

As judge in charge of modernisation I lead a team of 30 judges, with varying IT skills, drawn from every level of the judiciary. Five of us meet senior Court Service managers on a new Judicial Technology Board six times a year. Below this board there are three judicial advisory groups, each headed by a High Court judge. These groups meet once a month to give expert advice from a judicial perspective to the project teams on detailed issues within their particular bailiwicks.

I have often asked myself: why are solicitors not playing an equally prominent and effective role in all this planning? Two years ago I went to a court technology convention in Baltimore. I learned that US experience showed that 30% of the success of a good court IT project could be attributed to good management and 70% was due to leadership. The need to achieve a thoughtful understanding of human beings’ natural resistance to change and of the best ways of managing this resistance formed one of the greatest challenges. I also learned that courts’ IT projects could not possibly succeed unless all the key players on the court scene were each allowed to feel a sense of ownership of the project.

Civil servants are told they have to use the ghastly word “stakeholder” as a shorthand for this concept. I prefer to speak of partners. Judges and Court Service managers have driven this massive programme forward successfully so far as partners in a major enterprise. I was really pleased to hear this week that the programme had received a top award from the Cabinet Office for the quality of its project management. They were particularly impressed by the way the programme planners had involved the judiciary in all their planning as never before.

The time has surely come to spread this partnership concept more widely. In my book, solicitors and barristers and advice agencies and all the other agencies on the family and criminal justice side are just as much partners in the delivery of a fair, efficient and economic system of justice as the judges are.

At the end of my recent talk at the Law Society Conference on these themes, however, a solicitor from a firm in the north-west came up to talk to me. He said that he wasn’t interested in this partnership concept at all. If it was expensive and inefficient for the courts to handle so much of their business over the counter, that was just too bad. He believed that the Government’s hidden agenda was to close his local county court, and he certainly wasn’t going to co-operate at all if that was the case. I made inquiries later, and learned that there was no question at all of closing his local court. What was so depressing was his total lack of awareness that, on grounds of simple economics alone, the civil justice system could not go creaking along with inefficient, expensive working practices – letting down his clients who deserve a great deal more.

It is clear to me that there must now be very much closer working relationships between the Court Service and the judiciary on the one hand and representatives of both sides of the legal profession on the other as the modernisation programme moves forward. I had separate meetings with the President of the Law Society and next year’s Chairman of the Bar recently to see what might be done.

Conclusion

I have tried to give an insight into what is now happening, the resource constraints to which we are subject, and our vision of where we want to be going in future. At the end of their recent report, the solicitors on the LSLA Working Group said that they saw the immediate priorities for the extension of technology in the civil courts to be the widening of the ability to issue and serve proceedings electronically; the widening of effective electronic communication with the court; the improvement of infrastructure throughout the court system, and the facility for electronic payment of fees.

I have now indicated that all the leading courts in Inner London will be networked and able in principle to carry e-mail traffic for virtually all purposes apart from the service of documents that require payment of a fee within the next 18 months. The MCOL project has an on-line credit card payment facility, and the team on the On-Line Forms project is developing a different form of on-line payment facility. I hope that one way or another we may be able to crack this problem during the next three years. But we have not been provided with the money to develop the facility to serve proceedings electronically beyond what is available through MCOL or PCOL. This was one of the many plans we had to tear up in July last year when we received the thumbs down from the Government on civil court modernisation.

I have not mentioned video-conferencing or digital audio recording or electronic presentation of evidence or real time transcription. There is a lot I could say about each of these topics, and the Hutton Inquiry showed the world how we possess court technology as good as anyone’s if only the Government would make the funding available. But Old Mother Hubbard’s cupboard is bare for the next three years so far as the exploitation of most of these technologies is concerned. I am afraid that we must simply go on doing our best in a traditional, ad hoc, rather shambolic British way until the importance of civil justice receives rather more attention from those who take these spending decisions than it does today.

Lord Justice Brooke, a former President of SCL, is Vice-President of the Civil Division of the Court of Appeal.