Briggs LJ needs to dig out his passport and investigate how overseas pioneers are reforming the civil courts.
Lord Justice Briggs’ interim report on reform of the structure of the civil courts was published while I was in California researching its court self-help provision. It may be typically British to assume that no one else has gone ahead of us.
But, just as Scott found Amundsen’s footsteps at the south pole, the final report needs to recognise that British Columbia is ahead in implementing an online small claims court; the Dutch are ahead in dealing with family breakdown online; Ohio is ahead in online resolution of tax appeals; and California is out in front with mechanisms – on and offline – to deal with large numbers of self-represented litigants. Reform in this area need not be based on speculation; empirical evidence is also available and it needs to be evaluated.
Briggs should meet people like Alan Carlson. He is the tall, rangy administrative head of the courts of Orange County, California. He has worked in the field for nearly 40 years and has a passion for his job. He also has valuable things to say. Carlson’s courts have implemented e-filing and research has confirmed its cost-effectiveness.
We do not entirely see eye to eye. He disagrees with my pessimistic assessment that only about half of all poor litigants could use online communication with the court: people, he says, are ‘not stupid’. But he has a caveat. To get high participation of self-represented litigants online and offline, you need to provide personal assistance: ‘A lot of courts cut self-help provision when the cuts came; we expanded. It is cheaper to run a system with self-help.’
There are, of course, numerous agendas running underneath Briggs’ report – some notably domestic. Our government wants to reduce ‘the reliance on buildings’ and to ‘rationalise’ the court estate. In other words, it wants to flog some prime inner-city real estate. Most other countries are more careful with their inheritance.
Other themes are more shared. The judge wants to build an accessible system responsive to the needs of users. So do most other jurisdictions – though the better might, in contemplating this, avoid some of Lord Justice Briggs’ language. You know what he means by the need to maintain a ‘strong, independent and trusted justice brand’. But this formulation is in danger of reducing traditional constitutional values to contemporary management parlance.
We need to ensure that decisions on the report incorporate the interests of those we would have represented under legal aid until a couple of years ago. We can agree some principles.
First, access to courts without undue barriers, including cost, must be seen as a fundamental constitutional right. This has already been recognised under common law – let alone the European convention – by Lord Justice Laws in a case on court costs (Witham  EWHC Admin 237). Constitutional deference may require Lord Justice Briggs to dance around the point, but court fees must be affordable and proportionate.
Second, the courts should move decisively to the internet age. Adequate Wi-Fi access throughout all court buildings would be a good start and e-filing a pretty basic improvement. We need digitisation of the courts to get the costs down to support adequate access.
Third, if civil legal aid is to be left at its current levels then, like Orange County, a combination of self-interest and altruism demand some face-to-face assistance for litigants in person – not just low-level telephone lines.
On some matters, Briggs raises thoughtful questions and invites an equivalent response. Personally, I would have an instinctive bias against establishing a separate online court for small claims. It seems too likely to decline into a neglected ghetto. The very idea also seems to indicate a distinction without a purpose. Digitised processing should affect all cases. Indeed, I would also have no problem with an overall presumption that all parts of all cases be dealt with online unless there is a good reason not to. We need more discussion of how to deal with the presumption of article 6 of the European Convention on Human Rights for a ‘public’ hearing and the common law value of transparency.
We need research into how much and how many litigants in person actually want and can use online determination. Also, we need to know what help real litigants actually need to operate in the online world. California has a network of court self-help centres; the Netherlands a national set of ‘law counters’. We must look hard at foreign experience. That is a lot of ground to cover before June.
As part of a process of unearthing available evidence of what works, Lord Justice Briggs needs to grab his passport and talk to people like Carlson. Otherwise, the one-off chance of some share in the great court sell-off will be wasted in yet another grandiose but ineffective IT scheme.
Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice