Speech by Lord Justice Colin Birss: Online Dispute Resolution Forum
The Rt Hon Lord Justice Colin Birss
Deputy Head of Civil Justice
Online Dispute Resolution Forum: Keynote speech
Dublin and online
Tuesday 3 May 2022
Introduction
1. I would like to start by thanking Amir Ali for inviting me to give this keynote speech at the 21st International ODR Forum. It is a real pleasure to be here virtually. I am only sorry my calendar meant I couldn’t take a trip to Dublin and join the forum in person.
2. As it happens, I first came to Dublin in person over 30 years ago, in 1986. It was my first ever business trip to a client outside the UK. But I wasn’t a lawyer in those days, I was a young computer programmer, working for the consulting division of Arthur Andersen & Co. (the organisation now known as Accenture). I was the maintenance man for an IT system being used by an Irish Bank. The software used quite sophisticated mathematics to calculate payments that were due under some relatively complex finance leases. Funnily enough the leases themselves, the legal contracts, would qualify today as so-called smart contracts. That is because the way they were drafted meant repayments due under the contract were defined as being whatever the computer said. So, the computer was deciding how much should be paid and, in a sense, the computer code had been incorporated by reference into the contract.
3. My job was to fiddle with the code because it had a bug in it. If you reflect on that, what was happening was that I may have been, on the fly, altering the legal relationship between bank and its customers. This just illustrates in the context of justice in a digital world that there is often much less new under the sun than you might think. Despite the fascinating discussions today about blockchain and smart contracts today, in fact, in some parts of business things like that have been going on for a while.
4. The upshot of my first visit to Dublin was that having worked overnight to fix the bug I decided that I was working too hard. So, I left working in IT and retrained to be a lawyer instead.
Online Dispute Resolution in England and Wales
5. Now let me give you a sense of what is happening with Online Dispute Resolution in England and Wales today. A lot is happening; I am in almost daily meetings concerning the digitisation of our justice system. I work very closely with Sir Geoffrey Vos, the Master of the Rolls, in all sorts of ways.
6. One of the significant challenges in creating a Digital Justice System is the interplay between IT systems design and implementation, on the one hand, and court rule making and governance on the other.
7. Just to give you an example, many systems today are designed using a so-called agile systems design methodology. It is an iterative design process in which the system is constructed and is then changed in an iterative manner. You try it out, see what happens, and if it’s not very good then you change it in an agile way. That’s all very well when designing a computer game, but not so easy when your system is the medium in which a court or other dispute resolution process takes place. The thing is that in a paper world or a world in which the computer is just an online file management system, the process of justice itself is defined by rules and laws. But what actually happens (or not) is up to human beings, who may or may not follow the rules.
8. In a digital justice system, the process of justice itself takes place in the medium of the computer. If the computer requires somebody to do something in 14 days, then, even if you make an amendment to the rule to change it to 28 days, nothing will change until you amend the software. Conversely, if the coders get it wrong and the system gives people 21 days instead, then that is what they will actually have no matter what it says in the rules.
9. What this all amounts to is to show that the exercise of governing a digital justice system is fundamentally different from the way we have governed our courts’ processes previously.
10. Now this event is timely because a very important thing happened just last week which I would like to explain to you. Last Thursday, 28th April, there was the Royal Assent for the Judicial Review and Courts Act 2022. As you know, Royal Assent is the last step in the UK legislative process, so we now have a new Act of Parliament. This Act contains important sections setting up for the first time in England and Wales an Online Procedure Rules Committee (OPRC). It is a critical step for the Digital Justice System in my country.
11. The OPRC has a cross-jurisdictional remit for the whole of civil justice, family justice and the tribunals. It will govern the procedure in the online space, which is of course, the future of the justice system as a whole. The courts and tribunals process will be operated entirely on a smart digital system and the OPRC will ensure that governance is conducted to take full account of the digital system and to realise the benefits of such as:
a. Greater access to justice, particularly for individuals and SMEs
b. Greater efficiency of resolving disputes, including lower costs and time to resolution as well as the associated wider economic benefits
c. Greater transparency
d. Providing a justice system which can help contribute to the rule of law in an increasingly technological society
12. Let me articulate in more detail what this is going to look like in England and Wales. The idea will be to have a single online point of entry for all those with a dispute. A front end, if you will. That will send users off in the right direction and it may ask them questions to identify the nature of their problem to direct them appropriately.
13. Then there will be a pre-action stage, before court proceedings are issued. This will be completely online in future. The pre-action stage will consist of a variety of Dispute Resolution portals. This will help to allow Online Dispute Resolution (ODR) to be fully integrated throughout the process. That is why the front end is important; to make sure people are sent to the right place.
14. The courts and tribunals will have their own smart digital system to handle cases which have not been resolved in the ODR portals. It will be online too and will have integrated alternative forms of dispute resolution. Ultimately, if the case can’t be resolved in any other way, it will be resolved either without a hearing, with a remote hearing or physical hearing, as appropriate.
ODR portals
15. I’d like to spend a little time focussing on the pre-action protocols. The state will not necessarily be the entity that creates these ODR portals. What it will do is facilitate their creation by forming a governance framework, under the OPRC. This will allow the market to set the ODR portals up and the OPRC will provide the data standards to ensure they integrate properly with the courts digital system.
16. Today in England and Wales, we have an online pre-action portal for lower value road traffic accidents claims called the OIC. This portal was not built by the government but by the Motor Insurance Bureau. This portal is governed by pre-action protocols and Practice Directions under the rubric of the existing Civil Procedure Rules Committee (CPRC) and the Master of the Rolls. I can tell you from personal experience, that setting up the protocols and PDs was a cumbersome rule making process given the need for work between IT people and rule makers.
17. If this process was done as well as it could be, then for cases which are not resolved in the portal, the user would simply press a button in the OIC portal, and via an API. (application program interface), issue the appropriate claim in the court. All that is needed for this process is the data, which is in the portal, and an API which connects the portal to the courts. Sadly, we couldn’t get that done in the original system, but we will get it done in the future.
18. So what we do have at the moment, is this rather good new IT system for resolving disputes online. But if they don’t resolve in the portal and do have to go to court, when the user presses a button, the portal prints out the paper forms. The forms then travel by what we used to call ‘snail mail’ to the relevant court, where the information is entered into an electronic file system again. From the user’s point of view, they should not have to provide all of this information twice. So, that’s why the data standards are an important part of the thinking behind this because, if we can achieve integration between the pre-action and court, there will be significant benefits.
19. Another potential example came up at a conference about smaller IP (intellectual property) cases a couple of months ago. We have done a great deal for access to justice for SMEs in England and Wales with the IPEC (intellectual property enterprise court), but there still seems to be an unmet need for access to justice in very small IP claims for less than £10K. The difficulty is that these are quite specialised claims and the dispute is so small that it’s very difficult to see how any professionals could make a business model which would allow them to help. The proposal at the conference was to have a specialist ODR portal for IP claims which would allow the creation of an appropriate dataset for that case. Then, via the API with the court’s system, for the cases which do not resolve in the portal we can take advantage of the clarification of the issues and start the action in the small claims system.
20. The point is that the OPRC is designed to have the skills and the legal framework to facilitate all this.
21. The other critical part of this jigsaw puzzle which I am describing already exists. We are building a single IT system for Civil, Family and Tribunals; it’s called our reform programme. It has a variety of front ends for litigants bringing different kinds of cases and it has a variety of user interfaces internally for judges, but ultimately the chassis is one system called CCD. This means you can integrate it in the beginning and bring the cases into our court system without any serious difficulty. In fact, many internal user interfaces are the same across civil, family and tribunals. For example, there is a system for dealing with boxwork, which is effectively paperwork but it’s on the computer, which is the same across the jurisdictions. It is due to be finished next year.
22. These are potentially transformative advantages in the context of civil justice and will provide real benefits for access to justice if users only have to go to one place and tell their story once.
23. I have not forgotten the needs of users who find IT systems challenging. They need to be met. In fact, I have just been involved in writing a paper summarising the principles that we need to apply for access to a digital system. This paper has been accepted in the reform project at the design authority level. The digitally disadvantaged people need always to be kept in mind and properly provided for in various ways. This includes direct help when required, and it involves aspects of detailed design of the digital system itself. However, the important insight is that it must not be a reason for not using the benefits of a digital justice system for society as a whole.
24. There are two major challenges in all this:
a. The Governance of pre-action portals, and as I have explained that is covered expressly in the new OPRC provisions in the Act;
b. The practical governance of court’s processes in IT systems.
25. When a dispute progresses in the medium of the IT system, the coders are in effect setting the process of justice itself. So, there is a need for appropriate practical governance and the OPRC is how we will do this in the future.
26. The committee itself will be quite small, including both senior judges and some non-judicial members. In particular it will have members with IT expertise. In fact, in practice it will probably operate with delegated working groups with a mix of expertise and it will work in close collaboration with the existing rule committees.
27. The likely approach could be something like this. The OPRC could confine itself in rule making terms to setting out high level principles and data standards. There will be a need to document the IT systems themselves, but it may not necessarily be the right thing to do in a rule format. It has proved to be a very cumbersome experience in Online Civil Money Claims. For example, there is an incomprehensible Practice Direction called PD51R. It exists as it does because it was the only way we could think of to write down what the IT system did, to make sure that it was not coders who decided what the process of justice was, but appropriately governed rule makers. Although the rules themselves are almost incomprehensible, the users of the system find it very easy to use, which tells you something important; users don’t need to know what the rules are, but need a well-designed system, which will tell them what they need to do and when.
28. So you do need to have people deciding what the process is, it cannot just be the coders, but you also need a way of capturing what those decisions are. You cannot do that by saying merely that the law is what the computer says. Systems need documentation. However, in my experience of the court systems, the way to do it has never really been sorted out. We need a system specification, but not rules of the kind we’re all familiar with.
29. This is, in effect, a collision of traditions between the lawyers, on one side, who would like to see it written in something resembling law, and the coders on the other, who don’t want it to be written at all. We have to find this balance between those two schools of thought. This is work that is going ahead very soon.
30. The end result will be something quite significant, dispute resolution which is online from start to finish in smart systems.
Other work going on
31. As part of this work we are starting a pilot in England and Wales, for the resolution of small claims without a hearing. In some legal systems, small claims, and other claims, are decided without hearings. In the common law system in England and Wales, generally, the rule is that you need a hearing for almost any kind of final determination. These days this might be a virtual hearing, but it is still a hearing. We are trying to work out what kinds of claims we can decide without any sort of hearing. This is quite a radical change, so we are piloting in six courts next month. It will be a very interesting exercise and quite a culture change for a lot of the judges involved.
32. There is also work of the Civil Justice Council which has particular resonance to this discussion;
a. We have a costs report, which will start this year and part of its remit is to look at governance of costs in digital justice system, particularly with pre-action portals and the implications for how our court system operates.
b. There is also a futures group in the CJC, led by Prof Richard Susskind, who are looking ahead to where the justice system will be in 2030s.
33. I have also recently helped launch a report from the industry working group on electronic signatures aimed at facilitating their use. The summary of the report is simply this: in most areas there is no legal problem with electronic signatures. The reason they are not used often is that lawyers need practical guidance rather than legal guidance to reassure them that they can do it, and how to do so.
34. Change management in the courts is a significant challenge to introducing a digital justice system. Digital justice involves change, communication, training, and lots of detailed management issues. These are absolutely necessary components of the work to move our system into the future, and helping people do that. One aspect of change in the judicial context is that given their age, some (but by no means all) have less well developed IT skills compared to many under 40, or so (who will do much of that work instinctively). This is an important aspect, which is nobody’s fault in the slightest. We need to bring everyone along with us.
35. Change management is all about communication, and everything we are doing in England and Wales around digitisation requires communication. We recently made a piece of our system mandatory for legally represented parties to bring damages claims. This is an example of why communication is so important: if you are going to make things mandatory, you have to tell people. The difficulty is people often won’t use something until it’s mandatory; but then how do you test it to make sure you can make it compulsory if people don’t use it? The answer has to be communication.
36. Overall, there is a lot going on so this a very timely conference. Thank you.