The Law Society has responded to the second stage of a root-and-branch review of the structure of the civil courts in England and Wales, warning that an online court is not a universal remedy for the challenges facing the court system.
Submitting further comments to Lord Justice Briggs before his final report is completed in the summer, the Law Society pointed out that innovation is essential but new ideas must first be thoroughly tested before being rolled out.
Law Society president Jonathan Smithers said:
‘We support the desire to provide a modern, efficient and accessible civil dispute resolution service, but new ideas must be thoroughly tested before being put into practice. Experience has shown that making changes to one part of the justice system may have unintended consequences.’
The Law Society emphasised that it recognises the important role of information technology (IT) in the justice system and the efficiency savings for lower-value cases that an online approach to civil justice could offer, but warned it was critical that legal advice remained available to help people navigate the online court.
Jonathan Smithers cautioned:
‘If it works as intended, an online court may be able to reduce the need for specialist legal advice, but it will not remove that need altogether. It must not be used as a way of normalising a two-tier justice system where those who cannot afford professional legal advice find themselves at a disadvantage against an opponent who is wealthier and/or more knowledgeable about the system.’
Commenting on the recommendation to create an online court for claims up to £25,000, the Law Society said it supports the principle of an online court for straightforward money disputes in cases involving an amount under £10,000.
Jonathan Smithers said:
‘We have significant concerns that the proposed Online Court may exclude people’s ability to access legal advice for cases up to £25,000 in value. This is more than the average annual household income in this country.
‘People seeking to recover monies due and owing to them will still need legal advice on their claim as well as assistance with navigating the process, online or otherwise. Many cases will be too complex for users to lodge a claim on an online court.
‘Those with substantial claims may feel uncomfortable using an online platform and let’s not forget that almost a quarter of the population still has no online access. Wales has the lowest level of internet access in the UK and progress on the rollout of fast and superfast broadband indicates that there is some way to go.
‘Whatever the value of a case, it is vital that court users have the opportunity to be properly advised by a professional to support a just and fair outcome. While the Online Court may not require advocacy, there will still be a need for legal advice to ensure that everyone, including the vulnerable, can access justice. We will strongly oppose any approach that reduces access to justice in England and Wales, rendering it available only to those who can afford it, that have IT facilities and who are IT literate.’
The Law Society has also cautioned against further changes to the process of civil justice at a time when the impact of earlier changes, including a review by Lord Justice Brooke in 2009 and changes to the funding of litigation brought about by parts 1 and 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), have not yet been assessed.
Jonathan Smithers added:
‘The proposed expansion of the role of court officers should be subject to the findings of the County Court Legal Advisers Pilot Scheme, which are due in the autumn. Any change to court officers’ roles should be piloted and subject to evaluation.’