Online dispute resolution must secure access to justice for the vulnerable

The courts modernisation programme that will see online dispute resolution take centre stage should not result in the exclusion of the most vulnerable, the senior president of tribunals has said.

Sir Ernest Ryder, pictured, was one of the three signatories to the 'Transforming Our Justice System' paper last month in a consultation that paves the way for the deployment of online courts across the justice system.

Addressing the Bar Conference last weekend, Sir Ernest repeated his support for the project but warned that the development of digital solutions should not be at the expense of access to justice.

'We are only too aware that there will be some who have neither the ability nor the will to take part in a digital dispute resolution system. They may well be some of our most vulnerable citizens,' he said. 'We must not damage or restrict their access to justice. One of the fundamental principles of our reform programme is that we will improve access to justice.'

The digitisation of the courts system would see the process of online dispute resolution 'become the norm for much of the less complex work in civil, family, and tribunals jurisdictions,' according to the president, who nevertheless acknowledged the existence and risk of a digital divide.

'For some, digital access will be an improvement. It will make the justice system something more closely associated with the way they already live,' he noted. 'For others, we are designing a whole programme of assisted digital access. Specialist providers whose expertise can be made available to assist litigants in person, those with disabilities, special needs and vulnerabilities, will be commissioned to provide a coherent service that most of us know is presently a pipe dream.'

There was also mention of the court closure programme, which is expected to lead to the selling off of around 400 court buildings in the next few years. 'We will use alternative buildings to provide local access where this is needed,' the president said. 'We can provide justice at the end of the street, if that's efficient, fair, and just.'

The scale of the closures has concerned lawyers since it started in 2010. Access to justice campaigner Roger Smith told Solicitors Journal the government was 'flogging off valuable capital without a proper plan for alternatives' and no plans for ongoing funding of the system once the sales proceeds are exhausted.

Family lawyer Marilyn Stowe also wonders about how the money raised will be used. 'The president's speech mentions £1bn investment but I worry about the overall thinking behind it and the lack of concern in relation to obtaining legal advice from qualified solicitors or barristers.'

Stowe is also unconvinced by the current online court proposals, saying less well-off individuals might not have the ability to litigate in this way. 'I expect mothers and children will become even more vulnerable,' she said.

As to pavement justice and making justice 'part of the community', Stowe said: 'Travelling courts are, surely, a retrograde idea and will leave large areas of the country without a nearby court to access'.

But it is the 'over-emphasis on dispute resolution' which is Stowe's greatest concern. 'It's being focused too much on process rather than on achieving a legally fair outcome and ensuring access to legal advice before negotiations and settlement. Surely this is the reason for a legal system in the first place.'

Jean-Yves Gilg is editor in chief of Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk | @jeanyvesgilg