June 20, 2019

Online Court Bill under fire in the Lords

Modernising the legal system for the 21st century has taken a small step forward with the introduction of the Courts and Tribunals (Online Procedure) Bill to the House of Lords. The Bill, which aims to create a committee to provide rules for online proceedings in civil, family and tribunal cases, recently underwent examination at the committee stage.

The Bill is to be welcomed as it seeks to reduce costs and inefficiencies currently dominating the paper based infrastructure. However, the Bill also met with criticism from the House of Lords, with the Constitution Committee, concluding it "raises issues of constitutional concern" particularly in relation to the broad powers conferred on the Lord Chancellor. Additionally, detail of the digital infrastructure required for implementation appears lacking at this stage.

 Scope

The Bill provides for procedure rules which will require parties in civil, family or tribunal proceedings to use the new online court procedure. The rules "are to apply to proceedings specified in regulations made by the Lord Chancellor, or in the case of employment tribunals, the Secretary of State "(jointly referred to as "the appropriate Minister"). They may create an online procedure for all or any part of the proceedings, including issuing and defending proceedings and participating in hearings.

The Bill follows on from Lord Briggs' report "Civil Courts Structural review" in 2016, which recommended that Online Procedure Rules (OPR) should apply to all money claims up to £25,000. However, as pointed out by Lord Judge, (former Lord Chief Justice) as it stands the Bill covers all non-criminal proceedings and all civil cases whatever their value.

In a report on the Bill published by the Constitution Committee on 7 June, the Committee was also troubled about the potential for all kinds of civil proceedings to become subject to OPR. Concerns centred on the Bill giving the appropriate Minister next to unfettered power to specify via regulations what kinds of civil proceedings the OPR will apply to. On 18 June, Ministry of Justice spokesman Lord Keen laid amendments to the Bill to require the appropriate Minister to obtain the agreement of the Lord Chief Justice and the Senior President of Tribunals prior to making such changes.

Nothing in the Bill presently limits the use of online procedures to low-value claims as recommended by Lord Briggs. Although the government has said that initially the online procedure will apply only to "money claims up to the value of £25,000", the Committee has also said it wants to be "in control over the proceedings to which the online procedure will apply" so it can "widen [their] scope".

Lord Briggs recommended personal injury claims should be excluded if they would otherwise fall within the fast track or the multi-track, but opened up for the "... voluntary admission of PI claims which are, or are hereafter brought within, the Small Claims Track [SCT]".

It is unclear which SCT personal injury claims may be subject to the new online procedure. RTA claims under the new extended SCT will be dealt with on the new platform currently being developed. Liability SCT claims could become subject to the new online procedure, however most of these would originate in the existing portal, raising the problem of a patchwork litigation system for litigants to navigate. Clarification of the intended scope is required at the earliest opportunity to allow insurers to begin to make the necessary preparations.    

Another issue is costs. Lord Briggs' report recommended that the costs regime should be "modelled on that applicable to the Small Claims Track". How this would work with current proposals to extend the fixed costs regime is unclear, especially as the Bill has the potential to go beyond Lord Briggs' recommendation for the scope of the OPR.

Online Procedure Rules Committee

The OPRC will have the same powers as the Civil Procedure Rule Committee (CPRC). It will consist of two judges, one of whom will chair the committee, (appointed by the Lord Chief Justice), a legal practitioner, a person with expertise in the lay advice sector and a person with IT expertise (all three appointed by the Lord Chancellor).

In contrast there are currently only a small number of appointments made by the Lord Chancellor on the CPRC, with the majority of members drawn from the judiciary. Equally, the OPRC is currently limited to five members, when the CPRC has 16, which seems hard to justify given the potentially wide application of the new procedures.

The Lord Chancellor may also amend the composition of the OPRC, although with the agreement of the Secretary of State, the Lord Chief Justice and the Senior President of Tribunals. Following the Committee stage, Lord Keen laid amendments requiring the Lord Chief Justice to appoint a third judge to the committee, which means the Lord Chancellor and the Lord Chief Justice would name three members each.

The Bill currently provides that new rules can be approved if signed by three members of the OPRC. This was criticised during the debates as it would mean a rule could potentially be approved by committee members all appointed by the Lord Chancellor. A proposed amendment changes the threshold of approval to half the members, where one of them is the chair, or a majority of members if this is not the case.

The Bill also gives the Lord Chancellor the power to propose and disallow rules which the OPRC makes. As a result of these provisions, concerns were raised during the second reading by former MOJ Minister, Lord Faulks about the lack of safeguards in the Bill to prevent the appropriate Minister imposing "unsuitable" rules on the OPRC. During the Committee stage, Lord Keen, advised this power already applies to existing rule committees and has only been used once. An amendment has also been proposed by Lord Beecham whereby the OPRC could decline to create a rule proposed by the Lord Chancellor if it considers it inappropriate or unnecessary.

Access to justice

The goal of the Bill is to make the "services accessible and straightforward for the everyday user". However, little information has been provided about the development of the online platform which is of concern, particularly as the HMCTS has noted "its assisted digital programme will not be sufficient to support everybody to engage with online processes". Whilst it is expected that the Online Civil Money Claims service, which already forms part of the modernisation programme, will be used in the first instance, this system will require development to broaden the type of cases it can handle beyond existing financial disputes.   

Access to justice issues were also raised with regards to people who are digitally illiterate, and it was suggested the Bill should contain a legislative guarantee that these people will receive assistance. Although no such legislative guarantee was promised during the committee stage, a government amendment has now been introduced to state that "regard must be had to the needs of those who require technical support" when making online procedure rules. The appropriate minister must also have such regard when deciding to allow or disallow rules.

Repeated concerns were also raised about the Lord Chancellor's power to limit oral hearings in a wide range of cases, which is considered to unduly limit judicial discretion. An amendment has now been suggested by Lord Beecham to ensure the appropriate Minister considers the right to a fair hearing under the ECHR when deciding if a party should be able to choose between the OPR and the standard rules. The amendment also suggests the judge should decide which rules apply if the parties to the proceedings disagree. We expect this amendment to be discussed at report stage.

Next steps

The Bill's journey through the House of Commons will be watched with interest given its potentially far reaching implications for the future administration of justice. The Report stage in the House of Lords is scheduled for 24 June and we would expect the Bill to have its first reading in the Commons sometime in mid-July, legislative timetable permitting.