Rabbit in headlights

Judges have been mocked for being out of touch, lawyers derided for their conservatism, and court procedures ridiculed for their antiquated approach. As the internet revolution marches into our everyday lives, the law still looks like a tower of lever-arch files bundled in pink ribbon that a clerk precariously wheels across the road on a rickety trolley.

Not for much longer. In the words of Lord Justice Fulford in his Draper lecture last week, the courts are about to 'finally catch up with a world in which we renew our driving licences online, buy microwaves on eBay or music from Amazon, and book our holidays online'.

It's certainly high time mechanical processes should be performed by machines rather than people moving papers from one in-tray into the next. There is no point downloading a form from a website only to have to scan it once it's been filled in, then email it, only for that form to be printed at the other end and filed alongside thousands of others in a ring binder.

Yet when half of the profession starts enthusing about online processes, the other half tenses up at the prospect of digital courts. Perhaps the terminology is to blame. We're not really talking about courts, we're just talking about a process. In many local authorities, the planning permission process has long moved to online. There is still an element of paper, with most documents being produced on paper and filed as pdfs. But applications can be filed online, documents are stored centrally and can be accessed online by interested parties and members of the public.

Similarly, nobody is really arguing about how smooth the buying process is on Amazon or eBay. These are transactional operations, of comparatively low value, and the online dispute resolution processes these platforms offer are, in the main, suitable.

So is it, on the face of it, with a driver pleading guilty to a minor road traffic offence. Log in, pay the fine. It couldn't be more straightforward. As a matter of process, it makes sense. The savings achieved are a bonus. The court modernisation proposals go further. In four years, civil and family disputes as well as tribunal cases will be started and progressed mostly online.

Again, as far as processes go, this should bring much-needed improvements. But has any thought been given to how online processes influence the psychology of dispute resolution? Does it discourage defendants from challenging charges? Will applicants in money claims feel placated by processes? What if the party to a divorce is being pressured into it and really needs a lawyer instead of a decision tree?

This is just one of a number of unanswered questions behind the rationale for digital courts. The high levels of approvals for jurisdictions that do not regularly hold full hearings is an important criterion in measuring the success of digital courts, but it cannot be the only one. Access to justice is the other major concern, with up to nearly one in five 'digitally excluded' people potentially deprived of access to justice.

Designing an online dispute resolution process isn't just a matter of making the process mechanically efficient and user-friendly, it is how this process ensures that those with legitimate rights remain confident that it ensures these rights will be protected. It took the Dutch legal aid agency several years to roll out its online dispute resolution system. No doubt we can benefit from their experience. That should include not rushing into a project without assessing all the possible unintended effects.

Lord Justice Fulford provided some reassurance that the judiciary wouldn't support a programme where access to justice disappears down the rabbit hole. Equally, let's not be the white rabbit stunned by the bright headlights of the online world, lest the result is not a happy ending.

Jean-Yves Gilg is editor-in-chief of Solicitors Journal

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

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