An online court has its merits but it cannot remedy inequality of arms.
In the interim report of the review into civil court processes, the working group led by Lord Justice Briggs calls for radical change through the formation of an online court. The main risk identified is ‘throwing out the baby with the bath-water’ and losing the qualities which underpin the current judicial system.
However, Lord Justice Briggs is not yet persuaded that housing disrepair cases should be excluded from the online court. Comments are invited in writing (firstname.lastname@example.org) before the end of February. There are time and resource pressures, so the consultation is being conducted at some speed in parallel with the government spending review. Remarkably, the inner consultancy group working with Lord Justice Briggs does not include practitioners.
The new court would use pre-designed online software to elicit relevant information and documents for the court to determine the claim by an interactive process of questions and answers, where each new question is responsive to answers inputted by the user. The objective is to provide simple but effective access to justice without claimants incurring costs disproportionate to the amount at stake, or being deterred from pursuing a valid claim by the risk of increased costs.
Lord Justice Briggs is inviting ‘statistical evidence of the availability of risk-free legal representation, and an explanation of how the risk of liability for defendant landlords’ costs is, or might be, managed’.
Housing disrepair cases have been affected by legal aid cuts, with only a tiny minority of such cases still eligible for public funding. The growing number of disrepair claims are now funded by conditional fee agreements (CFAs). Unlike personal injury cases, however, the operation of CFAs is on a much more disparate range. Any statistical evidence of the availability of CFAs is dependent upon a smaller pool of practitioners. The impact of legal aid cuts has reduced the number of housing practitioners, with the threat that there are no incoming housing practitioners to take over.
The Briggs committee recognises that the online court cannot cure all ills in relation to disproportionate costs, but this should not be at the price of possible injustice to a case. The judicial process works well as a deterrent to the inequality of arms that is often the feature of disrepair cases.
Housing practitioners have become adept at providing alternative methods to fund disrepair claims, precisely to fill the gap where there is no legal aid in cases for vulnerable individuals taking claims against resourceful, powerful landlords. The inequality of arms requires active assistance to be given to individuals who would otherwise feel oppressed and overwhelmed by their case. Legal representation is required, not only because individuals may have language or literacy difficulties, but because they have challenging cases. Many tenants do not have access to IT, or even if they do are not IT literate. Individuals with learning difficulties would not be able to cope with an online system. Key facts could become lost, as opposed to when facts are extracted in face-to-face consultation at an early stage with legal advisers.
Frequently, in disrepair cases the main relief sought is injunctive relief, not just damages. Damages alleviate the enormous impact that disrepair can have on people’s lives, but foremost in such actions is the need for defects to be fixed. Even in cases where liability is admitted, it bec omes a matter of ensuring the repair is done satisfactorily. It becomes a power struggle between the resourceful landlord and the vulnerable individual tenant.
The merits of an online court lie in its potential to handle simple, modest-value disputes where the parties are usually on an equal footing, such as in building and neighbour disputes. The same cannot be said about disrepair cases.
Debra Wilson is a partner at Anthony Gold Solicitors and a member of the Law Society’s housing committee. The views expressed are personal