Proposals for an online court mark a ‘fundamental departure’ from the adversarial system of justice which could have ‘major implications’ for the judiciary and training at the bar, the Bar Council has warned.
Responding to an interim report from Lord Justice Briggs on the structure of civil courts, the bar said the plans could lead to the departure of talented advocates to other areas of practice or from the bar altogether.
It said creating an online court for claims up to £25,000 would have a ‘significant impact’ on the junior bar, as barristers rely on them to gain experience and hone their skills.
This would, in turn, risk stalling the conveyor belt of barristers who would be on track to become leading advocates in 10 or 20 years’ time and thereby reduce the pool of potential candidates for the judiciary.
The Bar Council also said the proposals, including plans to introduce case officers with a quasi-judicial role in the online court, will begin a ‘shift to a career judiciary of a very different character’.
It said this would come with considerable associated costs, drawing on the experience in continental Europe, and a reputational risk to the judiciary flowing from its reduced status and independence.
The Bar Council also warned that introducing a ‘lawyerless’ court would enshrine a two-tier justice system by building it into the civil justice system.
It said: ‘It is important to understand that outside the online court there will be cost recovery for lawyers and the assumption of legal assistance and representation; there will be determination by judges not case officers; and the system will be based on our adversarial system. The online court appears to be premised on, or at least indicates, a distinct movement towards an inquisitorial system, with determination by case officers, and with a presumption that parties will not have the benefit of legal representation and will be unable to recover any legal costs.
‘These three aspects distinguish the online court from the dispute resolution system which is frequently described as the best in the world.’
The bar said this could increase the number of unregulated, uninsured and often untrained providers of legal advice, pointing to the increase in paid McKenzie friends as a ‘clear indication’ of what lies ahead.
Bar chair Chantal-Aimée Doerries QC (pictured), said: ‘Individuals navigating a “lawyerless” online court process could easily find themselves in litigation with big organisations who can afford to hire their own legal teams.
‘Not being able to recover costs for advice or representation will mean leaving those who need it most to litigate without any legal assistance, which would put them at a significant disadvantage.
‘These proposals would also mark a shift towards an inquisitorial system of justice, which has major implications for the judiciary, the risks and costs of which have not been assessed.’
She argued the plans would need rigorous testing and careful piloting, and should be subject to parliamentary oversight.
She added: ‘Our legal system is the envy of the world, but these proposals have the potential to damage that well-deserved reputation.’