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04 FEB 2019

THE CHANGING FACE OF THE CIVIL COURTS

James Burgoyne of Brunel Professions on a programme to modernise the service

HM Courts & Tribunals Services (HMCTS) has ongoing plans to reduce the costs of litigation through modernisation of the courts service.

Steps have already been taken over the past couple of years, and despite budgetary, conceptual and technological challenges to overcome, not to mention strident criticism from some quarters of many of the moves, the momentum toward significant change appears to be increasing.

The summer of 2017 saw the pilot of an online court, a 3 stage process intended to resolve disputes “virtually”. The pilot was modest, using small claims under £10,000 and aiming itself at litigants in person.

But this was an early manifestation of a much larger shared vision, with Sir Geoffrey Vos, Chancellor of the High Court, calling attention at a Legal Business Seminar in Frankfurt in early 2018 to the “smartphone generation” not accepting delays inherent in the present justice systems and stating unequivocally, “We need to get our Online Dispute Resolution processes right, so that they can take their place in the court structure to speed up the delivery of justice and bring our justice systems into the 21st century.”

Later on in April came the launch of an online court for small money claims, with the intention to make it quicker and easier for people to claim money owed, resolve disputes out of court and access mediation.

Side by side with the concept of online courts was development of the idea of video hearings before a judge. A pilot was run in 2018 by tax tribunals with the users logging into the hearing from a location of their choice, and the pilot reported high levels of satisfaction with the approach despite technical difficulties experienced by some users. One person attended court from abroad, saving the need to fly home and a new mother took the opportunity to participate from home. A further trial is now being run in the County Courts of Manchester & Birmingham, involving hearings to set aside default judgements being run via video links.

It is hard not to see cost and convenience benefits in virtual courts and remote hearings, and given the present successes of these first steps coupled with the support of HMCTS, the pace of change will presumably continue. There is no reason not to suppose that it may not extend to negligence claims against professionals in due course.

The reduced costs and reduced time spent physically travelling to and attending court are undoubtedly attractions from the defendant’s point of view, as well as the claimant’s. Against this however is the perennial concern of abuse of “access to justice” measures by vexatious litigants, and whether reducing the financial and time cost of pursuing cases could actually encourage a claimant in pursuing a claim.

However, on this point there may be further technology-led reasons for optimism.

The focus on new opportunities offered by technology has also been looking at predicative applications. So for example, a US study in 2018 asserted that eight out of ten court decisions could be predicted by crowdsourcing, following analysis of the results of a competition to forecast the outcome of US Supreme Court decisions. It was noted that the findings could point to a new way of deciding whether or not to start legal action.

The same goal has led others to undertake studies of their own. Insurance law firm BLM for example partnered with the London School of Economics in a two-year project to create models that predict the cost, length and outcome of litigation. BLM believes that the huge volume of case data held by insurers and others can be exploited using data analytics and AI.  The project aims to develop models that can predict the outcome of low value, high volume disputes as well as larger and more complex claims.

If successfully developed, such predicative techniques might offer benefits in stiffening resolve to defend actions rather than seeking commercial settlement, or in persuading speculative or obstinate claimants at an earlier point in time that their action is ill founded, and should be dropped. Both can only be to the relief of the professional.

All in all, having your day in court may look very different in the future.

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James  Burgoyne

James Burgoyne

Director - Claims & Technical

Jim joined Brunel in 2009 and heads up the Technical and Claims Department. As well as representing Brunel on the ACE PII panel, he writes occasional pieces for us on insurance, risk and associated topics.

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