Richard Susskind and the CJC recommend online dispute resolution – but can the MoJ deliver?

Professor Richard Susskind has been a long-time and eloquent proponent of alternative ways of settling disputes through the use of both technology and procedural amendments. His picture of arguments being resolved by people in fancy dress in wooden-walled courts has long been a persuasive argument for change even before the costs are taken into account.

Richardson Susskind is the the principal author of a report called Online Dispute Resolution for low-value civil claims from the Civil Justice Council recommending what Susskind calls “a radical and fundamental change in the way that our court system deals with low value civil claims”. The proposals, set out on a new website here, include three tiers – dispute avoidance / legal online evaluation, dispute containment / online facilitation, and dispute resolution / online judges. Technology comes into play both in the provision of interactive information services which will “help people diagnose their issues and identify the best way of resolving them” and in systems allowing papers to be received electronically by a judge with an option of telephone hearings, perhaps via Skype. The report advocates that pilots should be undertaken backed by consultation with consumer groups and the legal profession. Some changes to the civil procedure rules will probably be needed, not least the rules relating to disclosure of documents.

As a Law Society Gazette article of today suggests, the plans do not sound like good news for solicitors, who will in theory not have a role in the new scheme of things – there is a reference in the proposal to “facilitators” but it is not clear who they will be or what special skills they will require which are different from the settlement skills which solicitors should have anyway. There can’t be many lawyers making a living from the lowest-level claims anyway, although £25,000 – the proposed ceiling for the scheme – is not exactly a trivial sum. It is worth observing two things, however: that claim value and complexity do not necessarily march in step; and that it seems a pity to dispense with a trained, regulated and insured profession in favour of a different set of people. Perhaps, as Susskind has long argued, this is a natural and inevitable process, in which low-level work is like a coal seam which can no longer be worked at a profit. I still worry for those left to argue their claims or defences unaided, however good the systems developed to guide them, particularly having regard to the recent fate of litigants in person cast adrift in the present system without a lawyer.

Articles in the Guardian and the Law Society Gazette, among others, summarise the proposals as set out in the press release and I won’t repeat those here. The principle sounds excellent. Even without the radical new plans, much more use could be made within the existing rules of active involvement by both judges and court officers – we still have judges who insist on personal attendance at hearings which could be dealt with by telephone, and courts so understaffed that no one answers the phone, where document delivery via email is not permitted, and where back office processes lag far behind the requirements of the procedure, all giving rise to situations where the best efforts of judges and parties are frequently confounded by staff who are either unable or unwilling to keep up. The new scheme of things requires a change of culture, and not just some rule changes and a bit of technology.

The Master of the Rolls, Lord Dyson, is supportive and is quoted as saying:

“I was in Singapore and Australia recently and I was ashamed to see what they are doing there. You go around our county court you see mountains of paper everywhere”.

Lord Justice Jackson was similarly impressed by the Singapore system, not least the back office system which manages the inception of proceedings, the filing of documents and the procedural stages. There is a difference: in Singapore, the judges are active to initiate such improvements, and have the consistent backing of government. Two things have confounded past projects in England & Wales much less ambitious than this one. One is the fickle nature of political budgeting, with a history of the plug being pulled on projects after great investment because the political and economic wind came to blow in a different direction. The other reservation lies in doubts about the general level of ability at the Ministry of Justice.

There are, I am sure, competent and willing people within the Ministry of Justice and in HM Courts and Tribunals Service. HMCTS has a new chief executive, Natalie Ceeney, who seems to be bringing a fresh and ambitious approach to a tired service.

The higher levels of management at the MoJ, however, don’t have a clue about some core business principles which drive change – it was clear from her interview with the Public Accounts Committee that Ursula Brennan, the Permanent Secretary at the MoJ, is innocent of any understanding of project management, risk assessment and pilots, and has no idea at all whether the recent budget-driven changes to legal aid and the court system have saved or lost money overall. She jumped at ministerial command and slashed legal aid without any thought at all about the consequential effects on the litigant in person; the LiP is first deprived of pre-action advice and then left to fend for him- or herself in court, where hearings can take a day instead of an hour because the judge has do the job of the missing lawyers – hearings which may never have been necessary if the litigant had been properly advised. Where’s the saving in that? Who is keeping count of the pure waste, never mind the failure of justice?

A Law Society Gazette article called Legal aid savings ‘no economy at all’ – CoA judge tells its story in its headline. The Public Accounts Committee’s report Implementing reforms to legal aid, published today, is highly critical of the lack of any evidence base for the steps which the MoJ took to cut costs. You will get a yet more damning picture from an article by Ian Dunt published today on the politics.co.uk site called MoJ refuses to release information on legal aid cuts.

Richards Susskind’s suggestions would jump over a lot of this both by the pre-emptive advice which is missing in so many cases and by simplifying both procedure and access. Its execution, however, lies in the hands of the same people who have so badly screwed up access to justice through ignorance and incompetence over the last two years. The MoJ’s own recent attempt to explain the processes to defendants in the criminal courts was a bungled cartoon which managed, among other errors, to reverse the burden of proof.

MoJ guide to criminal proceedings

If people of this calibre are left to commission the expert systems which Richard Susskind hopes for we are facing disaster.

I wish these proposals well. There is in theory a healthy budget with which to give them effect, and those making the proposals have clearly thought them through carefully. Their ambition to by-pass or jump over the existing defects in specification and procurement with an entirely new set of procedures with purpose-built tools reads well. I look forward to seeing how a court system which cannot presently receive simple documents by email will manage the mechanics of receipt, storage, and user access of even the limited disclosure which the rules will presumably require.

Even if the budget survives the next rounds of cost-cutting, I have grave doubts that senior people at the MoJ have what it takes to give them effect. A recent MoJ survey showed that only 35% of MoJ staff feel that managers have a clear vision for the future; only 21% felt that changes made in the organisation are usually for the better; only 52% want to keep working at the MoJ for the next three years. How many good staff will be around to see this project through?

This is a dysfunctional ministry, badly led by people inadequate for everyday challenges, never mind the radical changes which Richard Susskind and the CJC propose. Their plans must take account of this and Natalie Ceeney will do well if she can triumph over the attitude which infects the rest of the wider ministry. As I say, I wish them well. I won’t hold my breath.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Courts, eDisclosure, Electronic disclosure, Litigation. Bookmark the permalink.

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