Page 1 Page 2 Page 3 Page 4 Page 5 Page 6 Page 7 Page 8 Page 9 Page 10 Page 11 Page 12 Page 13 Page 14 Page 15 Page 16 Page 17 Page 18 Page 19 Page 20 Page 21 Page 22 Page 23 Page 24 Page 25 Page 26 Page 27 Page 28 Page 29 Page 30 Page 31LocalGovernmentLawyer Dispute Resolution 2016 19 How is the Online Court going to affect local authority practice? We should not underestimate the difficulty HMCTS will face in delivering this bold new vision. It is the most ambitious re-design of a court service ever attempted anywhere in the world, to our knowledge. Examples of similar services do exist (for example in the Netherlands and British Columbia, and indeed in England and Wales – think Money Claim Online, RCJ’s CE-File, or the Traffic Penalty Tribunal); but these examples are far narrower in scope. Furthermore, assuming a working system is delivered, its scope in terms of case type and value remains to be defined – both for the system in its final state, and also during any pilot period. For example, there is debate about the upper value limit, as well as an acknowledgement that some civil case types will not suit an online approach – for example residential possession cases, non-monetary claims, or claims involving children or other protected parties. Lord Justice Briggs surveys these case types in his report. However, let’s fast forward to a scenario where the Online Court has achieved the bulk of its objectives: it is largely online, it can largely be used without a lawyer, and it is used for the majority of civil case types in England and Wales. What could this mean for local government lawyers? The Local Government Lawyer round table (see p12} highlighted the discouraging prediction that a system aimed at encouraging access to court for LiPs may have the unwanted side effect of stimulating an increased number of baseless claims, placing additional burdens on respondent authorities. (Note that it is not yet clear what it will cost a claimant to use the system.) Lord Justice Briggs acknowledges this as a realistic concern. However the courts themselves will have no wish to waste their time or parties’ time on hopeless cases. The online triage system, properly designed, ought to provide prospective claimants with enough insight to adequately assess their chances of success. However Lord Justice Briggs also acknowledges the desirability of some additional system of early professional advice on the merits, even for those claimants who will proceed without representation. At the same time, the Local Government Lawyer survey highlights a catalogue of problems caused by face-to-face hearings with LiPs currently. These include increased time and cost; more adjournments; an onus on the court and the authority to assist; and the increased acrimony inevitable when unqualified claimants find themselves contesting personally emotive issues in an unfamiliar and intimidating environment. If the Online Court can help LiPs better understand the issues of their case, submit the relevant information in the right way, and prepare properly for the hearing process (and even obviate the need for face-to-face hearings entirely for some case types), this will benefit the authority legal team in reducing wasted effort. Beyond this, the Online Court has the potential to improve the management of all case types to which it is applied, whether involving representation or not. As some survey responses indicated, online interactions may reduce travel time and costs, particularly relevant for small claims where costs are not ordinarily recoverable. Reduced time spent at court may improve resource flexibility. At the same time, the renewed digitization effort to deliver an Online Court should also facilitate the e-filing of submissions and documents. This could end the common complaint that investment in modern matter management software counts for naught when the court still requires paper bundles. Furthermore, it is to be hoped that the ability to navigate the Online Court without legal qualifications will be extended to both claimant and respondent. This raises the possibility that some elements of interaction with the court previously accomplished by the litigator face to face may in future be managed remotely by other members of the legal team, enabling the litigator to focus on competing priorities. What can LA legal teams learn from ODR more broadly? Beyond the Online Court, it is worth noting that diverse parts of the legal industry are adapting ODR technology in various ways to their own needs. Corporate in-house counsel, who in many respects assume similar responsibilities to LA lawyers with respect to their organisation, are turning more to ODR technology not as a prop to litigation but as a means of nipping disputes in the bud. In this way, ODR technologies such as online mediation tools are used as an extension of customer service, enabling dissatisfied customers to articulate their complaints and enabling the business to reach a settlement well in advance of litigation, with its financial and reputational cost. As this type of development stimulates interest in ODR software, a careful review of the authority’s interactions with its service users may reveal opportunities to usefully and proactively extend the legal team’s dispute resolution activities into the field of prevention rather than cure. Desmond Brady is Director, Public Sector Strategy at Thomson Reuters. Examples of ODR technologies ● Automated negotiation ● Drafting collaboration for resolutions ● Virtual meeting rooms and technologies ● Arbitration systems ● E-filing ● Online court systems (for example the British Columbia Civil Resolution Tribunal) There will be an online triage system to help the LiP diagnose their legal issue, prepare their position and make their submissions. This is probably the most radical use of ODR technology envisaged by the Online Court programme. It is also likely to be the hardest to crack.