Law Society policy adviser Alice Owen and Section committee members James Perry and Raj Rai were invited to a demonstration of a prototype of the online court last month. Here, they explain what they saw - and why there is still much work to be done.
On 16 May 2017, a small number of individuals from the legal profession – including some members of the Civil Litigation Section committee and myself – attended a workshop hosted by HMCTS at the Ministry of Justice, for a demonstration of a prototype of the Money Claims Online product, better known as the ‘online court’.
The online court is one of the key recommendations outlined by Lord Justice Briggs in his 2016 final report on the civil courts structure. It is currently envisaged that the online court will be initially available for money claims up to £10,000.
On the day, we were given some technical information from the developers and an overview of how the prototype has been developed to date. In small groups, we were invited to work through the screens proposed for litigants in person (LIPs) issuing a claim, and then those screens for responding defendants. This was our first opportunity to practically test an early version of the product, stepping into the shoes of a future LIP, and provide feedback on each screen.
The current prototype is intended only to deal with digitising the issue and response processes for money claims of £10,000 or less where there is only one defendant.
Our feedback was divided into warnings, observations and positive comments. HMCTS is currently undertaking further research with practitioners for a second prototype for those pursuing claims and where users are represented.
Unfortunately, it appears that workshop participants identified many warnings, and that there is still a long way to go before the prototype is fit for purpose.
Some simple teething problems will need addressing to make the prototype useable and consistent: for example, ensuring that the same straightforward language is used in statements of truth for those issuing and defending claims. However, there are more serious issues to consider.
Essential definitions and screens providing example causes of action were absent, which could result in serious inefficiencies, populating a digital system with unmeritorious claims issued against the incorrect parties.
The current prototype had no mechanisms to direct LIPs to other avenues where the claimant may have a choice of how and where to resolve their dispute. For example, unpaid wages claims can be made through the employment tribunal or through the court – yet there was no signposting to websites such as ACAS. If the claimant opts in to a digital process and has this cause of action, they should be made aware of their options in order to make an informed choice before proceeding.
The issues identified during the workshop demonstrated that whilst the prototype has been developed by those with technical expertise, there is a real lack of ‘on the ground’ legal experience from those who issue and respond to claims to ensure that the prototype is fit for purpose. It is also difficult to envisage how the current product takes account of any pre-action protocol obligations of parties, which encourage early settlement prior to issuing a claim as well as narrowing the issues in dispute.
Again, without any comprehensive dovetailing of this prototype with established pre-issue protocols and behaviours, the online process may inadvertently create more disputed claims, as LIPs go straight to filing a claim rather than exploring ADR or settling pre-issue.
Developers have been given an incredibly difficult project to map out and deliver. The magnitude of this challenge is exacerbated by the undetermined parameters of the end product – is it for £10,000, £25,000, or more? Whilst this might be an important feature of agile testing, there is a real risk of underestimating the differences in process (both in pre-action and issuing) of the different types of claims.
Oversimplification could result in missing important chances to resolve and settle disputes, or indeed flood a system with unnecessary claims. The process in its current form overlooks the important triaging and sifting role that solicitors play when providing early legal advice to those who may be looking to make a claim. The Law Society has continually reiterated the importance of early legal advice, urging that any online court should be confined to claims of no more than £10,000, subject to a phased roll-out and user experience research during testing
A wider participation in the workshop from other user-focused organisations, such as Citizens Advice or Revolving Doors, would have brought a broader view of the needs and priorities of likely users of assisted digital services.
As such, much work is needed before this product provides a viable digital alternative to the current process available to LIPs. The hope is that the first pilot, which is due to run at some point this year, will iron out some of the wrinkles. As the current iteration of the product strips out much of the legal detail, there is a real risk of injustice to those using it – both claimants in being able to present their claim properly against the correct defendant, and defendants to respond effectively to any action against them.
All of that aside, we should finish on the positive. The terminology was reasonably clear, the design was crisp and the end product, if the feedback has been taken on board, is likely to be fairly user-friendly. The developers did listen intently and seem willing to engage and to take on board the profession’s suggestions, which is a very positive start. The willingness to deliver something which works well for all and for years to come is a great starting point.
Whatever the outcome, one meeting is certainly a positive start. But, in the same way that Rome wasn’t built in a day, it needs to be recognised that it is going to take a Herculean amount of effort over the next few years if we are going to successfully rebuild something this quickly that has been in the making for hundreds of years. If we don’t, we will be lumped with something that creates more knots for the judiciary to unpick, not less.
This article was co-written by members of the Civil Litigation Section (James Perry and Raj Rai) and Alice Owen, policy adviser at the Law Society. If you or your firm is interested in taking part in HMCTS research as part of this project, please email firstname.lastname@example.org