In search of 21st-century courts
Despite ongoing headaches, the move to digitise and modernise the courts of England and Wales is beginning to proceed at pace, writes Nicholas Heaton
Despite their international standing, the civil courts of England and Wales are not exactly known for being at the forefront of technology. They are, however, beginning to adopt a style of working fit for the 21st century which should help to attract and retain international commercial litigants.
The courts in the relatively new Rolls Building bear little physical resemblance to those in the Royal Courts of Justice, and they lead the charge towards digitisation. E-filing of claims and other court documents using the CE-File system was made mandatory in the Rolls Building courts in April, after low take-up of a voluntary pilot run before that. Some may have been sceptical about the capability of CE-File to handle (nearly) all of the filings in the Rolls Building, but it appears the experiment has worked.
The system is user friendly and (other than the odd period of downtime) there have been no major problems since it was made obligatory. It’s true that a promised new version of practice direction 51O on electronic working, to clarify certain practical aspects of e-filing and add insolvency-related provisions, has failed to materialise. However, plenty of guidance has been provided for using the system so the absence of a revised PD hasn’t been a big problem for most practitioners, who can benefit from its 24/7 availability.
Some other changes promised in the run-up to the introduction of mandatory e-filing are also yet to be implemented. For example, it’s unwise to e-file applications made without notice, if this can be avoided, since there is no guarantee that the other side won’t be able to see them (which rather defeats the purpose). Hopefully an official solution to this will be introduced soon.
It will be interesting to see if and when electronic filing is rolled out to the corresponding district registries of the High Court, as has been suggested, to the courts in the Royal Courts of Justice, and perhaps even to the Supreme Court.
It’s not just the Rolls Building that has gone digital – the legal system is moving online in other ways too. An online court has been on the cards for some time, with the most recent proposal for one in Lord Justice Briggs’ final report in 2016 on his wide-ranging review of the structure of the civil courts. Money Claims Online (MCOL) has had its own online system for some time. In another area, probate applications by individuals can now be made online. It’s only a matter of time before other court processes are digitised.
The courts are also encouraging use of technology in more subtle ways. One common criticism of litigation in England and Wales (despite the Jackson reforms) is of the cost and other burdens of lengthy disclosure exercises. The High Court has recently shown greater willingness to address this. It has embraced the use of progressive e-disclosure technology by approving the application of predictive coding software to reduce the cost of and time required for large-scale document reviews. In addition, the Rolls Building Disclosure Working Group is drawing up proposals to substantially modernise and revise CPR part 31.
The general trend towards modernisation has more basic aspects as well. In October, the name ‘Business and Property Courts’ will be introduced as an umbrella term for the specialist civil courts and the lists of the Chancery Division (in the Rolls Building and the regions). This re-branding exercise is intended to make the courts more user friendly, by ‘doing what they say on the tin’, and allow a more flexible cross-deployment of judges.
These moves towards modernising and digitising the court system may have been in the pipeline for a while, but they have become even more relevant in maintaining its position after 2016’s Brexit vote. Despite the ongoing headaches of the high costs of litigation and the length of time it can take, these smaller changes can contribute to helping the courts of England and Wales remain among the top destinations in the world for dispute resolution, through Brexit and beyond.
Nicholas Heaton is a committee member of the London Solicitors Litigation Association and a partner at Hogan Lovells