The Ministry of Justice and the senior judiciary intend to introduce "digital justice" comprising end to end online dispute resolution, as part of the £1 billion programme to holistically reform civil and family court proceedings

Known for their Rolls Royce, but largely analogue based, approach to working, there appears to be growing acceptance that the courts require significant overhaul in a modern day, digital society. The goals being to streamline the disputes process, encourage resolution and manage pressures on the courts, all while reducing costs and delays. 

Whilst still in the development stages, the planned Online Procedure Rules Committee (OPRC), newly legislated for via the Judicial Review and Courts Act 2022 (in effect as of 28 April 2022) will govern the new digital justice system; the OPRC will be made up of senior judges and certain non-judicial members (particularly IT experts). 

The comments of Sir Geoffrey Vos (Master of the Rolls) and Lord Justice Birss, addressing audiences at the London International Disputes Week (12 May 2022)[1] and International Online Dispute Resolution Forum (3 May 2022)[2] respectively are particularly enlightening. As expanded upon below, they clearly highlight the desire to introduce new technologies, which will shape the future of the courts and, it is to be hoped, contribute positively to access to justice.  

Digitisation and the OPRC

When the Master of the Rolls opened his speech by saying "many lawyers think that the highest pinnacles of digital justice are achieved by using Teams … for a dispute resolution hearing'', he was probably not wrong. E-disclosure and E-filling may be the new summit for some, but the Master of the Rolls was clear that his understanding of digital justice "is an entirely smart system that operates online, or even on-chain, to identify and resolve the issues between the parties in a far more streamlined and efficient way than the current pleading-based processes." That is some ambition.

In practice he envisages:

• case facts being established where immutable digital records exist, for instance on the blockchain;
• algorithms and/or artificial intelligence automating and resolving interim or routine processes;
• a truly digital system with a single point of entry, where the whole process (including pre-action) can be initiated and pursued online. Case details will travel through the lifespan of proceedings, rather than needing to be revisited or re-entered at each juncture. There will also be integrated mediated interventions. 

In terms of making this a reality, the first significant step is the creation of the OPRC to devise the Online Procedure Rules (Rules). As Birss LJ explained, this body and the Rules will have ''a cross-jurisdictional remit for the whole of civil justice, family justice and the tribunals''. The stated statutory intention is for the Rules to require proceedings to be issued and progressed digitally with a focus on promoting accessibility, fairness and efficiency, in particular supporting the use of innovative methods of dispute resolution. 

What next?

As Birss LJ put it: ''A lot is happening''. He envisages that the pre-action stages of a claim ''will be completely online in future'' performed by a variety of Dispute Resolution portals (ODR Portals), which may be offered by other dispute resolution bodies, but under the governance of the OPRC. These systems are intended to be fully integrated with the courts should a claim be issued. A pilot has begun for the resolution of small claims without a court hearing and we will listen out closely for news of the OPRC's efforts, including draft Rules.

The use of technology brings obvious advantages. Significantly it may make the English courts more attractive and more easily accessible in practice to foreign litigants: the Master of Rolls is clear that he wants the UK Courts to continue to be a premier venue for international dispute resolution with procedures ''attractive to its users''. He envisages not an analogue process conducted on electronic, rather than paper, documents, but a truly ''smart'' and digital process, and with that comes the challenge of not prejudicing the rule of law. 

On that note, the Master of the Rolls closed with the following question: 

"Could an unreformed analogue dispute resolution system be really either sustainable or ethical in a world where everything else is obtained digitally?'' 

Answers on a postcard, please?

Key Contact

Thomas Ash