Civil procedure revolution: time for the guillotine?

The digital integration of ADR is going shape the future of civil justice, says Tony Guise  

Civil Procedure Revolution: The New Rules for Witness Statements is the title of a recent webinar about the changes introduced on 6 April 2021 for witness statements in the Business and Property Courts. 

Taken alone, that reform might be described as recognition rather than revolution as the Practice Direction (57AC) reflects law that has been good since at least 2013 (the decision of Leggatt, J., as he was, in Gestmin SGPR S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560) about the fallibility of human memory. 

ADR integration

Revolution-seekers need look no further than the movement to integrate alternative dispute resolution (ADR) into civil justice. This reform has greater potential to revolutionise civil justice than any development since the fusion of equity with the common law, 146 years ago.

ADR goes hand-in-glove with the Master of the Roll’s (MR) call for more online integration. This integration uses LegalTech to manage ADR cases within and between the existing digital infrastructure that the Ministry of Justice/HM Courts & Tribunals Service (HMCTS) has built.

The aim is to ‘join digital dots’, to create one connected system of civil justice offering a tiered structure of dispute resolution processes beginning with ad hoc negotiation, leading to different forms of more structured ADR before the parties enter the court realm of binary resolution: win/lose. 

MR’s revolt

This was put at its most revolutionary in the MR’s speech to London International Disputes Week 2021 on 10 May 2021. Edited highlights include:

“[Pre-court dispute resolution] is already moving online with a range of portals… All of them make sophisticated use of the benefits of technology. But more of these can usefully be created and operated by industry itself”.

He added: “As it seems to me, we should try to make the most of what is good about the existing systems, but provide what is lacking, which is cohesion and integration…

“My idea would be for front-end portals to be accredited. Those wishing to be accredited would be required to operate to the highest standards. They would have to provide fair processes, and they would have to ensure that they allowed for integrated ADR interventions designed to bring about consensual resolution.

“Perhaps most important of all, each portal would produce a single data set using clearly defined data standards. That data set would be required to be in a form that could feed through an API directly into the online court system”.

Private sector portals

Nor is this a novel approach, as we can see in the following portals, all built and delivered by the private sector. 

In 2013 – the Portal Company, a quasi-mandatory settlement platform for a range of personal injury claims managed entirely online via a platform built by the insurance sector.

In 2014 – Thomson Reuters’ C-Track platform (badged as CE-File) won the tender to deliver efiling in the Rolls Building jurisdictions and then the Business and Property Courts.

In 2021 – the most recent platform to launch is the Official Injury Claim settlement platform, built by the insurance sector again and launched, a few years late, on 31 May.

Conversations about civil justice reform are now framed by these realities:

·       There is going to be (a lot) more ADR, some of it compulsory.

·       Those processes will be managed online with final disposals/hearings conducted virtually to a lesser or greater degree as the parties choose.

·       Online ADR management platforms will integrate with the settlement platforms already running – and, at the other end, with HMCTS home grown platforms such as County Court Online.

Progress

In the 6 years since we began building ADR online management platforms, the market has reached a turning point, with firms actively developing ADR engagement policies and training providers offering courses on managing mandatory mediations. Who would have imagined that in 2015? 

Yet more will need to be done once we get more ADR managed online. Then, we will need to crack on with the use of some really interesting technology to create a civil justice system that delivers frictionless resolution with data feeds providing empirical evidence to fuel future civil justice reform. 

Then we shall have a revolution; what an exciting time to be alive.

Tony Guise is the director of DisputesEfiling.com. He is also past president of the London Solicitors Litigation Association disputesefiling.com