Is the future of dispute resolution online?

Businesses and consumers may find themselves better placed to resolve their own low value disputes without reference to lawyers in the future.   A revolutionary new online court has been recommended by a senior member of the judiciary in a bid to bring greater access to justice.    In his Civil Court Structure Review, published in July 2016, Lord Justice Briggs said that he would recommend an “Online Solutions Court” as part of the Government’s on-going court reform programme.  He has recommended the new court be separate from the County Court and regulated by new simpler court rules.

It is anticipated that the proposed court, which is likely to eventually become mandatory, will deal with all money claims up to £25,000, save for specific exclusions.  At first a “soft roll-out” may see the court dealing with claims under £10,000.   The level of claims heard by the court and the type of case it will deal with are to be kept under review with sufficiently complex claims being transferred out of the new scheme.

The web based court aims to allow court users to formulate and essentially run their own cases.    This is important because often it is not cost effective for a business or individual to consult and retain a lawyer where their case is of a low or moderate value.  This is because the ongoing costs of consulting a lawyer are likely to outweigh the value of the case and may not be recoverable even if the case is won.  That is frustrating because often the amounts in dispute are not insignificant sums.

The proposed court will give court users access to basic legal principles and, following an initial exchange between the parties, to determine whether there is actually a dispute, the case can proceed to be issued at court.  The litigant would then be guided through an analysis of their dispute so to produce a claim document capable of being understood both by their opponent and by the court.  After the claim is lodged the court will manage the case and try and assist the parties to resolve their issues.  Those cases which do not settle will proceed to be determined.  If suited the trial could be by video hearing, telephone hearing or on the documents.

The stages of the new proposed court are not wholly revolutionary.  Many of the proposed elements already exist across the court system.  However, the prospect of having to create a workable IT system which leads parties though a series of web based investigations to enable them to formulate their case without the need for a lawyer is an enormous task.

Lawyers may still be used for cases in the online court.  However, a major economic barrier will be that those who chose to instruct lawyers will not recover the legal costs they incur even if they are successful in their case.  Limited exceptions have been suggested so there may be an element of fixed recoverable costs for initial advice or for complex trials.

Even simple cases can raise complex issues.  Ensuring that people are not left bewildered will be one element that will be vital to the new court’s success.  Instructing a lawyer at the outset will still be important in many cases to fully understand the merits of the case.  Further, businesses which have a large volume of smaller claims will have to think very carefully about how their litigation is managed if the online court becomes a reality.