The lord chief justice, Lord Burnett, has announced the launch of a new consultation process - Judicial Ways of Working: 2022. The consultancy firm Accenture has been retained to assist the judiciary in analysing the benefits of online courts and video link hearings. The desire is for judges to buy into increased use of technology in the courts. The report aims to look five years ahead. It will be interesting to see how the judiciary view the planned increase in the use of technology in the court system. There is little doubt that it has its pros and cons, though we all accept the need to embrace technology as a necessary part of life in the 21st century.
Looking at this from the perspective of the solicitors’ profession, there is a realism that we have to recognise and so also endorse the increased use of technology in litigation. For some years, we have had telephone hearings. At first, the parties and the courts grappled with what was then a slightly challenging issue of who organises the facility and how to dial in, how to manage who is on the line when no one is visible, and so on. Now, only a few years further on, conference calls are a daily feature of business life and no one thinks twice about a dial-in. Similarly, we all questioned the merit of e-disclosure; the increased cost; the concept of everything being held in cyberspace and not capable of being controlled in the same way as paper, but here we are now – after only a few years of using such systems and we all recognise the merit in them.
While we use e-disclosure systems in our office environments, converting them into a court based trial bundle platforms has proved challenging due to the lack of suitable infrastructure in most courts. We have seen the Rolls Building introduce some level of technology but other than that, we all too often see the court system struggling to cope with any form of it. In order for the courts to have any prospect of offering online courts or video hearings by 2022, there will have to be very considerable investment of the technology required to facilitate it and in training the judiciary and court staff to use it.
The challenge appears to be more immediately one of investment and training than perhaps persuading the judiciary to embrace technology. In comparison with the business world, the court system is lagging well behind. When technology is used, and works, it shows all court users that the court system can participate as a 21st century dispute resolution forum. There is a long way to go and the judiciary and court staff deserve all the training we have had in the business world. Training is necessary to get the most out of any system and not just at implementation stage, but also regularly as everyone becomes familiar with it as it is used.
Video conference hearings would be an improvement over telephone hearings. Being able to see the other parties and the reaction of a judge to a point being argued is an integral part of advocacy and parties are deprived of it in telephone hearings. They work on a cost saving basis as they avoid anyone travelling to a court, but otherwise, they are often less productive than a face to face hearing would have been, as the dynamics of human interaction can be lost.
Video link evidence has been used for some years in trials and works well. Using this as an example, online courts could work well to save very considerable travel of those attending hearings. To be successful, it requires discipline and control. It is important to ensure the environment in which the person giving evidence is controlled in the same way as if in a court room, which usually means attendances at the place of the video evidence by lawyers for the parties. The cost saving is therefore most probably negligible when one offsets the cost of the witness attending court with the cost of the hire of the venue and equipment to facilitate the video link and then the cost of the lawyers attending to ensure court process is adhered to. Nevertheless, it is not difficult to envisage situations where online courts may work to save cost and time.
Technology has an integral role in litigation – particularly in document heavy cases where e-disclosure has been shown to save considerable cost and facilitate a much smoother handling of large amounts of paper. This consultation is welcomed and it is hoped that there will be appropriate investment in systems and training of the judiciary and court staff to ensure that any technology in the court system works to the benefit of all users.
Georgina Squire is a committee member of the London Solicitors Litigation Association and head of dispute resolution at Rosling King LLP