Introduction
1. As the result of a suggestion of the Honourable Mr. Justice Cresswell, Chairman of the Information Technology and the Courts Committee (“ITAC”) Civil Litigation Working Party, to Mr. Tony Guise, President of the London Litigation Solicitor’s Association (the “LSLA”), the LSLA undertook to arrange a working group of practitioners drawn from the Bar and the Solicitor’s profession to consider and report on practitioner requirements for technology in the Civil Courts (“the Working Group”). The Working Group has taken as its remit to report on the practical priorities and concerns for technology in the Civil Courts for practitioners using those Courts on a daily basis.
2. Under the aegis of Anthony Maton, a Committee Member of the LSLA, the LSLA formed the Working Group as follows:-
Solicitors
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Barristers
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3. In order to prepare this report the Working Group (or constituents of it):-
(1) Met with Perry Timms and David Jacobs of the Court Service on
(2) Met with Simon Smith of the Court Service on
(3) Met with Chris O’Reilly, Director International Litigation Support at LDM, a company involved in electronic document management, on
(4) Met as a group on two occasions on
(5) Attended the Court Service and Land Registry Modernisation Seminar on
(6) Considered the “Money Claim on-line” Scheme and the Practice Direction “Pilot Scheme for Money Claim online” which accompanies it;
(7) Considered the Courts and Tribunals Modernisation Programme paper on “Modernising the Civil and Family Courts” of January 2003;
(8) Considered the “Practice Direction – Pilot Scheme for Communication and Filing of Documents and Applications by e-mail”;
(9) Considered the “Commercial and Admiralty Courts E-mail communications with the Court guidance” of
(10) Considered the paper on “Electronic Disclosure” produced by Mark Humphries on behalf of the Commercial Litigators Forum (“the CLF”) ;
(11) Consulted the membership of the LSLA (see Appendix 1); and
(12) Reported back to the Committees of the LSLA and TeSCA.
Overview
4. We are given to understand that the Court Service’s approach to technology in the Civil Courts is as follows:-
(1) that it is intended to set aside a sum of £95 million to be spent on technology in the Civil Courts over the period 2003 to 2006;
(2) that this budget excludes expenditure on technology for Combined Court Centres, which expenditure will be covered by the budget dedicated for development of technology in the Criminal Courts (the LINK Project);
(3) that the focus of that budget will be on the installation of infrastructure – which we understand to be “boxes and wires” – into Civil Courts in
(4) that the installation of “boxes and wires” will at present be limited to the High Court and the largest 50 County Courts in England and Wales; and
(5) that there will be some funding left over after the installation for specific but essential software or other Information Technology projects for the Civil Courts on which our comments are requested.
5. Against this background the Working Group reports:-
(1) a consensus that, whilst we do not believe that £95 million is likely to be enough to establish the needed level of technology support in the Civil Courts to bring the Court Service to an acceptable standard commensurate with similar services abroad, the approach of the Working Group should be to consider in a positive manner how that investment can best be spent;
(2) an emphasis against the background of this positive response that (a) we believe that funding technology in the Civil Courts is crucial to the future running of those Courts; (b) that further funding would have been preferable and (c) that future funding will be required;
(3) agreement that, in the light of the limited funding available, the approach of focusing infrastructure spend on the leading 50 County Courts and the High Court is a sensible one as we strongly believe that the quality of technology is more important than the quantity of that technology (this is supported by the fact that 58% of LSLA respondents (Appendix 1) valued quality as being more important than quantity);
(4) nonetheless, a request that all Courts should have at least one computer terminal capable of receiving e-mail communications (see below); and
(5) an emphasis that the aim should remain to bring all remaining Courts throughout the system up to speed with technology of similar quality as quickly as possible.
Detailed proposals
6. We set out below those areas which we believe are of particular interest, importance and concern to practitioners in determining how technology can make the
A: Electronic Issue of Proceedings
Present position
7. At present proceedings can only be issued on-line through use of the Court Service’s “Money Claim on-line” Scheme. This is a pilot scheme which has been running since
8. When an online claim form is received by the Money Claim Online website, an acknowledgment of receipt is automatically sent to the Claimant. The acknowledgment of receipt does not, however, constitute a notice that the claim form has been issued. When the Court issues a claim form following the submission of an online claim form, the claim is ‘brought’ for the purposes of the Limitation Act 1980 on the date on which the online claim form is received by the Court’s computer system. The Court will keep a record, by electronic or other means, of when online claim forms are received. When the Court issues a claim form, it will –
(1) serve a printed version of the claim form on the Defendant; and
(2) send the Claimant notice of issue by post.
9. Where a claim has been started electronically, the Claimant can also file electronically a request for judgment in default, judgment on admission, issue of a warrant of execution and can view an electronic record of the progress of the claim. A statement of truth is still required, but entering your name on an on-line form is equivalent to a signature.
10. In addition Defendants can electronically file an acknowledgment of service, part admission, defence or counterclaim. The form is not filed until it is received by the Court’s computer system, whatever time it is shown to have been sent.
11. A Practice Direction – “Pilot Scheme for Money Claims online” – governs the Pilot Scheme. The Pilot Scheme has proved extremely successful and we understand that it issues more claims than any other County Court in the country bar one.
Recommendations
12. The Working Group’s recommendations as to the electronic issue of proceedings are as follows:-
(1) we believe practitioners would find it extremely helpful to be able to issue the widest possible range of proceedings remotely i.e. we believe that there should not be restrictions, as with Money Claim on-line, as to Court, amount of claim, description of claim (by restricting characters), number of defendants, or jurisdiction;
(2) an acceptance that there may be some proceedings that cannot be issued on line but that this should be the exception not the rule (for example, we understand the present limitation contained in the Practice Direction that Claimants cannot be children or patients);
(3) a stress on the necessity of being able to pay for issue by some means of electronic payment (see below) at the time of issue and of being given proof of such payment;
(4) of the necessity of being given automatic acknowledgment of issue online electronically so that there is proof of the fact of issue – we believe that the present situation is not ideal as, whilst one receives acknowledgment of receipt by the Court Service, this is not acknowledgment of issue, which follows in the post: as an action is only “brought” upon issue by the Court Service, not receipt, the practitioner has no way of knowing when issue will actually occur, particularly important in Limitation Act cases;
(5) practitioner ability to serve proceedings issued on-line themselves without relying on the Court to effect service – at present the Court issues and serves at some later stage after receipt: as Claimant’s Solicitors, we would prefer to be able to issue the proceedings on-line, and then print off with a view to arranging service ourselves; and
(6) therefore a firm belief that the procedures for acknowledgment of payment and issue must be robust enough to allow service without further recourse to the Court.
B: Electronic Issue of Applications
Present position
13. PREMA is a pilot scheme being run at Preston County Court whereby Solicitors can issue applications by e-mail. The pilot scheme covers non-urgent applications to the District Judge made by Solicitors. An application is issued by sending it to a fixed e-mail address. Pro-forma e-mails are used, the e-mail identifying a brief description of the application, whether it is on-notice or not, the name of the Judge and the next hearing date. The Application Notice and draft Order are attached to the e-mail, as is any witness statement in support and any other document of relevance previously filed with the Court, the idea being that the Judge can consider the application without recourse to the paper file. Signature of the statement of truth in the Witness Statement is confirmed by the Solicitor in the e-mail. Service of the application can be made electronically in the normal circumstances of CPR Practice Direction 6 paragraph 3.3 (3) i.e. where Solicitors act on the other side and have consented to such service.
14. The Court then acknowledges receipt of the application by e-mail and asks for payment of the fee, which cannot be made electronically but must be made manually. The acknowledgment is copied to all parties. The Application will then be referred to the Judge. Broadly, the Judge may then either (1) resolve the application, sending an Order out by e-mail; (2) ask for further information/ submissions by way of e-mail/ telephone; or (3) determine that a hearing is required, either in person or by telephone. Either party may correspond with the Judge by e-mail at any point in the process.
15. These Rules are implemented by way of the “Practice Direction – Pilot Scheme for Communication and Filing of Documents and Applications by e-mail”. The Practice Direction has so far only been applied to Preston County Court since
Recommendations
16. The Working Group’s recommendations as to the electronic issue of applications are as follows:-
(1) practitioner consensus that we would like to be able to issue all applications on-line (so broadly in line with PREMA but to include urgent applications);
(2) agreement that, to work efficiently, this would require a similar automatic acknowledgment and payment system as that set out under “Electronic Issue of Proceedings” above;
(3) agreement amongst Solicitors that they would like to be able to serve applications issued on-line without further recourse to the Court (again in line with PREMA);
(4) accordingly there would need to be a procedure for giving dates and times to applications on issue (PREMA appears to deal with this by putting it in the hands of the Judge to decide whether there needs to be a hearing and then to arrange it: this appears to us satisfactory provided the Judge is pro-active and adequately supported by Court staff); and
(5) failing which a procedure should be available for serving applications without dates with dates then to be agreed/ issued.
C: Communication by e-mail
Present position
17. In relation to communication between practitioners it is the Working Group’s experience that, increasingly, a substantial proportion of those communications occur by e-mail. In addition, as to communication with clients, it is the Working Group’s experience that a majority of communications with clients take place by e-mail.
18. With regard to the Court we note two recent developments. First, as already noted, the recent “Practice Direction – Pilot Scheme for Communication and Filing of Documents and Applications by e-mail”. This allows e-mail communication with the Court, and, to date, has been extended to
19. Second, we note the recent guidance issued by the Commercial and Admiralty Courts in relation to “E-mail Communications with the Court” which has been in effect since
Recommendations
20. The Working Group’s recommendations as to communication by e-mail are as follows:-
(1) practitioner agreement that it was an important step for practitioners/ parties to be able to communicate with the Court by e-mail on as many issues as possible as quickly as possible (in this regard 50% of LSLA respondents (Appendix 1) believe that it would be “very” important to their practice to communicate with the Court by e-mail, with 46.55% stating it is “quite” important and only 3.45% saying that it would be “not at all” important”);
(2) recognition that those issues might need to be limited in the first instance to e.g. listing, skeleton arguments etc. but insistence that even this limited step was extremely important;
(3) further recognition that there would need to be protocols to handle communication by e-mail with the Court along the lines of the Practice Direction for the Pilot Scheme;
(4) insistence that the Courts had to ensure that there were sufficient practices and procedures in place so that the Courts could handle e-mail traffic in, for example, ensuring that the right documents e.g. skeleton arguments, were delivered to the right person at the right time;
(5) agreement that the widest possible e-mail communications between Solicitors should be encouraged by the Court Rules and approach; and
(6) agreement that automatic acknowledgment of an e-mail was an essential, even if that e-mail was not then dealt with for some time.
D: Electronic payment of Court fees
Present Position
21. As set out above the only present facility for payment of fees electronically is by payment by credit or debit card when issuing claims on Money Claim on-line. Otherwise, the present rules have no facility for electronic payment, rather an implied undertaking from the Solicitor making the electronic application that he will then pay the required fee manually.
Recommendations
22. The Working Group’s recommendations as to electronic payment of Court fees are that:-
(1) it should be possible to pay a wide range of Court fees electronically;
(2) for systems allowing issue on-line to work successfully, this is an essential component of any system;
(3) any such system of electronic payment should cover all large users of the Court system, from Solicitors firms to e.g. Utility Companies as a minimum;
(4) it is for the Court Service to determine an adequate system that allows the widest payment of electronic fees possible; and
(5) any such consideration should consider the practical and public policy considerations of allowing discounted Court fees for those who pay electronically.
E: Present Trials of Court e-services
Present position
23. As set out above at present the following “trials” are being undertaken by the Court Service: (a) Money Claim on-line; (b) PREMA in Preston County Court – a test of issuing applications on-line; and (c) testing of e-mail communications with the Court in Preston, Walsall and the Commercial and Admiralty Courts.
Recommendations
24. The Working Group’s recommendations as to the present trials of Court e-services are that:-
(1) these trials should be widened to test their real plausibility; and
(2) it would be sensible to test such services in a busy Court in
F: Video Conferencing
Present position
25. Video conferring suites have been installed in the Royal Courts of Justice, and in
Recommendations
26. The Working Group’s recommendations as to video-conferencing are that:-
(1) video-conferencing is an immensely useful tool;
(2) it should not, however, be a priority for further spending at this stage;
(3) nonetheless it was clearly sensible to both make use of those facilities that already existed and to make any facilities installed in Combined Court Centres available to Civil Practioners in those Courts.
G: Electronic Case Management/ Deal Rooms
Present position
27. It is the stated aim of the Courts and Tribunals Modernisation Programme paper on “Modernising the Civil and Family Courts” of January 2003 that the Court Service will “introduce .. Electronic files. The electronic file will replace the paper file .. It will include copies of all documents filed in each case, details of the steps taken, and copies of Orders and other Court produced documents. The electronic file will be available from all locations” (page 8). Nonetheless, we are not aware of any practical steps that have yet been taken to develop such electronic files by the Court Service. Nonetheless, we know of certain individual ideas being pursued, for example that by TeSCA.
Recommendations
28. The Working Group recommends in relation to electronic case management/ deal rooms that:-
(1) an electronic case management system should be an important long term rather than an immediate short term aim of the Court Service;
(2) the development of such a system should be with the view to there being access to that system by practitioners and by parties (in the LSLA survey (appendix 1) 72.41% of respondents stated that such a file would be “very” useful, and 24.14% that it would be “quite” useful”, only 3.45% saying that it would be “not at all” useful);
(3) such a system should aim to contain electronic versions of all documents filed at the Court during the course of proceedings but not electronic versions of disclosure documents (although (see point 6) such electronic disclosure should be supported by the Court infrastructure);
(4) the point above is, of course, subject to the point that there may be some documents filed by the parties which the Judge should not see e.g. those detailing a payment into Court or Part 36 Offer;
(5) the Court should ensure that the infrastructure it develops and the systems it develops are able to support party use of a wider form of electronic case management system but the Court should not itself aim to develop such a system, leaving that to those parties who wish to use such systems; and
(6) the infrastructure of the Court system should allow use of electronic case management systems that allow large scale disclosure by electronic means and presentation of evidence electronically (in this regard 37.93% of respondents to the LSLA survey (appendix 1) thought it would be “very” useful to conduct disclosure electronically, with 39.66% stating it would be “quite” useful, and 22.41% saying it would be “not at all” useful).
H: Infrastructure and the Courts
29. The Working Group recommends:-
(1) very strongly that the Court must get the infrastructure right so that parties can bring technology to the Courts and make it work in an easy and efficient way[1];
(2) that this means that infrastructure in the Court room, the meeting rooms in Court Buildings, in Robing Rooms and any “Support rooms” must be absolutely right: all of these rooms must have adequate plugs, cables, data ports, and broadband connections and access to printers to allow the greatest possible use and flexibility of use for technology. This will allow e.g. drafting, agreement and printing of Orders immediately after Court, rapid and stable access to on-line legal research resources and document management resources (especially if scanned images have been stored) and rapid amendment of documents for submission to Court;
(3) application of XHIBIT to the Civil Courts with emphasis that it should not simply be for witnesses but also for all court users and all courts;
(4) continued display of Court lists on websites; and
(5) that whilst it can see the usefulness of electronic diaries for Judges it does not see these as a high priority for practitioners.
I: Claim Form Searches On-Line
30. There was a view from the Solicitors present that we would like to be able to undertake Claim Form searches on-line.
J: On-line Access to Legal Materials
31. In relation to on-line access to legal materials:-
(1) we wish to express long term support for BAILLI, which we see as a very useful site which should be encouraged; and
(2) we believe that completion of the Statute Law Database should be a priority in the short term.
Conclusion
32. The Working Group believes that there is a significant opportunity for technology in the Civil Courts, even based on the limited budget available, to make the Civil Courts more accessible, much cheaper and much quicker for all users. However, in order for that to be achieved the Court Service will need to focus on priorities, on the practical implications of the steps needed and on the benefit to those using the system as opposed to the comfort of those administrating it.
33. The Working Group appreciated the importance attributed to relieving local county courts of the bulk of administrative work which would have the effect of concentrating their expertise in defended cases where it is needed. The pilot scheme in Northampton for issue of proceedings online has been greatly successful, and we took the view that the first priority should be to extend the pilot scheme which at present is limited to money claims, thereby relieving the staff at the hearing centre from all their responsibilities other than those involved in assisting judges to hear defended cases. The extension of the PREMA Scheme for issue of applications online with the extended use of e-mail will reduce unnecessary attendances at Court and keep costs to a minimum.
34. As a result the Solicitors in the Working Group see the following (in order) as the immediate priorities for the extension of technology in the Civil Courts:-
(1) the widening of the ability to electronically issue and serve proceedings as set out in paragraph 12 of this Report;
(2) the widening of effective electronic communication with the Court as set out in paragraph 20 of this Report;
(3) the improvement of infrastructure throughout the Court system, both for the Courts themselves and for practitioners as set out in paragraph 29 of this Report; and
(4) electronic payment of fees as set out in paragraph 22 of this Report.
35. Many of the matters which are of importance to Solicitors are not of direct importance to barristers, for example electronic issue of proceedings and electronic payment of court fees. The matters which the barrister members of the Working Group consider would be of most assistance to barrister practitioners are the following:
(1) provision of up-to-date IT and communications infrastructure in court-rooms, conference rooms and robing-rooms (including electrical sockets, network cabling, broadband and access to a printer); and
(2) being able to communicate with the Courts by email, with provision for automatic confirmation of receipt.
36. It follows from this that there is clear consensus that the two immediate priority items for the Court Service should be (1) infrastructure and (2) communication by e-mail.
[1] In this regard we support Graham Smith and Nick Gardner’s letter of
