The online procedure rule committee and the digital justice system – find out more with LexisNexis

Introduction

Technology is the future. A bold statement and one that we hear so often. Stand back from it, be critical, look at it from as many different perspectives as you can, and you come to a different statement.

Technology is the key to a better future. That is the statement for me. Technology that builds on our core values, improves the efficiency of how we do things and how we deliver on those values like access to justice and fairness. It does not mean simply abandoning those values and replacing them with “computer says no” it is about building on them.

A quote from Little Britain was not the quote you expected in an article about procedure in the civil justice system. Bear with me, as its value is in showing what can be a prevailing view in society of how the introduction of computers into systems that are there to help people in need actually works out. Satire has a long and useful history in our society of exposing flaws and injustices in the world.

The underlying truth is that a computer based system is designed by people for people. From the early focus on mapping the problem to establishing decision trees to form the framework of the system it all involves people. The phrase “garbage in, garbage out” has a long history in computers starting with Charles Babbage in the 1800s to the point where it is now a common shorthand for one of the key principles that matter which is that the outcomes from a system will only be as good as the information you put in it.

In this context what matters is the system design. That is particularly important when the system that is to be designed deals both with a core value to our society: access to justice, and a key principle of our constitutional settlement: the rule of law and access to redress. The working title is the Digital Justice System (“DJS”), and the Online Procedure Rule Committee (“OPRC”) is a central part in the design, build and afterwards the governance of that system.

Background

The genesis of the OPRC goes as far back as the Briggs Report[1] of 2016. It was at that juncture that the importance of digitalisation[2] of the justice system began to be considered more seriously. At the core of the recommendations was the formation of an online rule committee that would cover the civil, family and tribunals ecosystem. Establishing such a body would require primary legislation. Just as, for example, the Civil Procedure Rule Committee (“CPRC”) has the vires to do what it does because of the Civil Procedure Act 2017 so would any new committee require a statutory base for the rules it would make.

The lesson from many years of involvement with rule making bodies is that the legislation can lead to delays. There are often good reasons for that, not least of which is that it must be right that there is a legal basis for the rules that dictate how a person uses the court system. Here that meant several false starts with legislation that fell for a variety of reasons including general elections. So, by the time the enabling legislation for the OPRC made it through the parliamentary process the landscape had changed, most notably with the change to ways of working brought about by the COVID-19 pandemic.

In the interim period between the Briggs report and the advent of the OPRC digital change in the civil justice system has certainly not stood still. During the pandemic LJ Briggs and I oversaw the rapid expansion on limited resources of the old Practice Direction 51S online issuing pilot scheme for damages claims. In a time when lockdown meant there were huge logistical obstacles to the issuing of paper claims in the County Court this was of critical importance to personal injury practitioners and others. Prior to that we, along with other members of the CPRC had begun the process of digitalisation of money claims, such as debt recovery, via the creation of the Practice Direction 51R pilot for Online Civil Money Claims (“OCMC”) . That work in the pandemic also provided an impetus for the development of the Damages Claims Pilot (“DCP”) in Practice Direction 51ZB which is now the route by which most personal injury claims in the County Court are both issued and managed. Likewise, but out of scope here, advances have been made in other jurisdictions such as the Family Division[3].

The Vision

You will of course be familiar with any number of speeches that have been given by the Master of the Rolls set out the vision for the DJS. One expression of that from a speech at London International Dispute Week 2022 is:

“…digital justice is an entirely smart system that operates online.. to identify and resolve the issues between the parties…

Judges, arbitrators or experts will still be responsible for the ultimate decision, but routine or interim processes may be automated and resolved by algorithms, always provided that the parties know what AI is deciding and retain the right of appeal to a human judge.”

If you stand back from the detail of how the system is intended to work, and what technology might be used it is useful to outline the stages that would be involved in resolution of disputes:

1. The recognition of a problem by the parties
2. The provision of signposting and guidance to identify the legal basis for their dispute and the potential options for resolution
3. The use of pre-court dispute resolution to support early resolution of disputes
4. The issue of proceedings in cases that could not be resolved
5. The resolution of the dispute which might include alternative forms of dispute resolution before a final hearing
6. Enforcement where necessary

Each of those stages requires thoughtful consideration and not all can or should be built at the same time.

The Online Procedure Rule Committee

Fast forward to the 26^th of June 2023 and the first meeting of the new OPRC took place. The size of the challenge ahead had made me consider applying at all, and that first meeting confirmed both the size of the challenge but importantly that there was a commitment to meeting it.

The membership of the committee is:

• Sir Geoffrey Vos, Master of the Rolls (Chair)
• Sir Andrew McFarlane, President of the Family Division
• Sir Keith Lindblom, Senior President of Tribunals
• Brett Dixon, legal expert
• Sarah Stephens, expert in the lay advice sector
• Gerard Boyers, technology expert

There are several important things to take on board about the OPRC that will assist you in understanding what changes are to come to the justice system, the timing of them and to prepare for them. Much, so far, has been said by commentators on digital justice matters about the OPRC but that has been from outside of where the work is being done. Some of that is educated guesswork and some of it is based on a desire to translate their own businesses, in the field of non-court dispute resolution, into the new DJS.

Traditionally, the approach to rule making in my experience of the civil justice system is that the Civil Justice Council keeps under review and recommends changes, as does government, and the CPRC writes and implements the rules. The OPRC is a hybrid of both of those functions. In part that is a function of the committee being new, being built from the ground up, and the system it is to develop being new too. So, whilst there is a real desire to get on and make rules it is rightly tempered by real thought being given to the direction that we set off in before beginning to run. There are examples of that process available such as the mapping of the civil, family and tribunal justice system that has been undertaken and made available[4]. It is obviously right that the current system is mapped and understood before changes are considered.

The jurisdiction of the OPRC, likewise is non-traditional and unique. That it covers civil, family and tribunals is the first differentiator. So, expect to see that time is taken on, and work undertaken in, all three areas either in combination or separately. It is also the case that lessons learned from any of those areas will be used in the others. The aim is for a coherent digital justice system that addresses the resolution of problems. Taking a step away from the personal injury world for the moment it is well established that unmet legal need has the potential to spread out from the area of specific need into other areas. The classic example of this if someone is dismissed from their job unfairly then without timely resolution of that issue they cannot pay their mortgage or rent, which leads to repossession proceedings, that might expose problems in their marriage leading to a need for the family courts to address divorce proceedings and potentially related issues with the children of the marriage. It is not difficult to see how the unfair dismissal could be replaced by the impact on someone negligently injured and unable to work. The point is simple, but well made, the areas are interconnected, and any system developed must take that into account if it is to succeed in its aims.

Staying with jurisdiction for the moment, the reach of the OPRC uniquely extends into the pre-action space. This is perhaps the most crucial point and the most misunderstood. At present, taking civil as an example, we have pre-action protocols that set out norms of behaviour for the parties. The governance of that is based both upon an assumption and a reality that any failure to comply with those norms will be resolved once proceedings are issued. There are significant weaknesses in that approach:

(a)   not every case is issued, nor does it need to be

(b)  the opportunity to promote settlement before court proceedings by  compliance with norms of behaviour such as the early identification of issues and exchange of relevant documents is missed if enforcement of those norms takes place after issue

(c)   quite properly a judge dealing with, for example, a first case management conference post issue is looking forwards to the management of the case in the court system and not backwards to what has come before. That leads to a risk that a party does not consider the risk of sanction for non-compliance pre-action to be high and consequently behave as they see fit

The judgment in Churchill v Merthyr Tydfil[5] exposes that weakness in the current approach to governance of the pre-action space. It is not just a case about Alternative Dispute Resolution. The judgment directly refers to the provisions of CPR 3.1(4) and (5) that detail the courts power to take in to account pre-action conduct when managing a case. The reality though is that the only point at which the court can exercise those powers is once proceedings have been issued.

So, the fact that the OPRC can make rules to govern the pre-action space is certainly a factor a practitioner would be well advised to keep track of. The ability to do so is more specific and will lead to rules even if there remains the question of how any breach will be sanctioned. The misunderstanding I have seen of this is both what that means in practical terms as already set out but also that the OPRC is only concerned with the pre-action space. Like any undertaking it must start somewhere, and some areas are prioritised over others. The power to make rules comes from the Judicial Review and Courts Act 2022 and it is worth noting the breadth of the powers in s23 and the powers in s24 which relate to the pre-action space and providers of dispute resolution services.

The last point to note is that the system is digitally based[6]. How that will work in practice is important. Why that is so can in part be identified from the lessons to be learnt from existing digitalisation projects so far in the civil justice sphere. The single most important ask of practitioners in those existing projects has been for a working Application Programming Interface (“API”) to enable the smooth interaction of data held by in house systems with any digital justice system. The lesson from the introduction of the Official Injury Claim Portal (“OIC”) has been that in a high volume system any blockage in the use of the system leads to a build up of cases within the system quickly, with the delayed development of the API being a significant issue for professional users. In a justice oriented system where a user is looking for resolution of a problem that is unacceptable. The DCP has also seen frequent requests for the creation of a working API.

So, it is helpful to note that the vision of the OPRC is for the creation of an API, initially, that is focused solely on enabling the smooth transition of case data into the court system where that is required. Whilst that may be short of a system that interacts continuously with the court system data it ensures that data captured by any pre-action system is utilised in the court process saving time for users and giving the court a clearer picture of what has happened to the point of entry. Again, there must be a starting point to the work and the pre-action space is the focus of that.

Next Steps

 The focus is necessarily for now on the pre-action space as the advantages to any integrated digital justice system of a coherent approach to early resolution of disputes are manifest: less pressure on the courts if earlier settlements are achieved and disputes that need court adjudication have that time; earlier outcomes for those with the disputes; and for personal injury practitioners who have already turned to digital to streamline process in a limited costs recovery environment there is the potential for greater streamlining and integration into their own systems.

In the pre-action space, the next big question to ask is multi-faceted: how do you seek to govern the space, who are the providers that will be part of that space, and what does it mean for those that are in that pre-action space. That is an area of developing thought and is a necessary step before embarking on the rule writing.

The OPRC are standing up two sub-committees, one focusing on governance and rules with the second focusing on technology and data. The interviewing process is underway as at the date of this article. Those appointments will support much of the early work and thinking. The net has been cast wide and has sought to capture both lawyers and non-lawyers. The sub-committees will also work on some of the related issues such as how we leverage technology in such a system and how the data the system relies on and generates is used both to ensure smooth day to day operation and to inform future evidence led changes.

The two other areas being considered are how any rule making system folds into the OPRC jurisdiction areas that are already within the jurisdiction of existing rule making bodies, such as the CPRC, and how the rules themselves will be expressed. In relation to the former the answer is that it depends on the nature of the rules and systems being brought in. To use examples from the civil sphere, as I am most familiar with them, I can see that really matters. The OIC is subject matter specific, it is firmly in the pre-action space, and is a digital process that has much more in common with a non-court dispute resolution provider than say the DCP which is a system that begins at the point of issue and applies to a broader class of cases. The point is that the way of adopting depends on the subject matter, and I suspect that will be just as true in family and tribunals too.

This relates closely to the second point which is that how the rules will be expressed is important. My strong preference is for a separate easily accessible set of rules made by the OPRC. The opportunity of a clean slate is compelling. The goal should be to build a more accessible set of rules with a simplified drafting style. It is worth noting that the CPRC has already embarked on a programme of simplification, or as I called it at the time I was a member barnacle scrubbing, of the rules. The OCMC rules, which were an early attempt in civil justice at a system built by technical experts and lawyers, is cumbersome and has been superseded in terms of drafting by a higher level approach that combines what the screen requires into the rules in the DCP and relies on a much simpler expression of what the user is required to do.  That difference will play a part in the decision as to which rules are adopted and which rules need to be revisited as well as how the OPRC rules are expressed. We are used to, in a conventional rule making process, to rules that stand the test of time and stay with us over many years. In a digital world much of the work is done on an iterative basis. Each version of an operating system for example builds on the last version and evolves each time. We must get used to the fact that rules will likely change in a similar way as they seek to deliver access to justice based on a digital “operating system”. The change in drafting style from the OCMC experience to the DCP experience is an example of that. There is already a recognition that the drafting style in relation to rules is long overdue an overhaul and the CPRC barnacle scrubbing or simplification program is an example of that change.

Finally, there are as ever the details to consider. The Judicial Review and Courts Act 2002 has an important caveat on the jurisdiction of the OPRC. This is that the jurisdiction relates to “specified proceedings”[7]. What those are is to be set out in a statutory instrument to be passed by parliament[8]. Legislation requires the Prime Minister to call an election by no later than December 2024, and it of course may be done before that. The passage of such a statutory instrument could be disrupted and delayed by any election and without it, it is not clear how the rule making process could properly begin. Of course, decisions may be made as to what the rules will look like, but the secondary legislation would need to be in place for the rules to take effect.

Concluding Thoughts

I would stress at this point that the views expressed in this article are mine and not those of the OPRC, the Ministry of Justice or His Majesties Courts and Tribunals Service. They are though views based on membership of the OPRC and a long history of involvement in policy and rulemaking. I would add a simple caveat to the views which are that they are expressions of where the conversation is at now in relation to a system that is being built from the ground up and, of course, things may change.

The OPRC is critical to the development of a modern, fit for purpose system of delivering access to justice. I understand the impatience of some, particularly where they are looking to provide dispute resolution services to users, for rules to be made and systems to be delivered. However, access to justice is a precious thing and the justice system delivering that can be, as we have all seen, fragile particularly with the pandemic related addition to backlogs still echoing through the system to this day. So, it is important that the steps taken are considered and deliberate which takes time alongside standing up a new kind of rule making body.

For my part, it is exciting and a privilege to have been appointed by the Lord Chancellor to be the sole legal expert member of the OPRC, but I will certainly welcome the reinforcements from the sub-committee recruitment drive. That recruitment is the point that will drive forward the work that has to be done as well as the diversity of thought and opinion on how it will be done.

It is an ongoing project, and it is one I would encourage you to both watch out for and engage with.