In his report "Access to Justice" Lord Woolf emphasised the importance of using computer-assisted technology to improve the efficiency of the administration of civil justice. He went as far as saying that "investment in the appropriate technology is fundamental to the future of the civil justice system and is also likely, in due course, itself to be a catalyst for radical change". And yet, despite these fine words and numerous reports, very few improvements have materialised.
Lord Woolf's report led to the introduction of the new Civil Procedure Rules in 1999 which anticipated, in many respects, the opportunities which technology was likely to provide for improvement in the way in which the courts work. For example, they provided for the first time a power to "hold a hearing and receive evidence by telephone or by using any other method of direct oral communication", to allow witnesses "to give evidence through a video link or by other means" and for service of documents by e-mail.
One of the most important innovations was the increased control of proceedings by judges by way of case management. The Rules impose a duty on the court to further the overriding objective (to deal with cases justly) by actively managing cases, and active case management was defined to include "making use of technology".
The Lord Chancellor's Department recognised that in order to maximise the benefits from the Rules, modernisation of the civil courts system was required, and in January 2001 the Court Service issued a consultation paper, Modernising the Civil Courts. The paper outlined how new ways of working with technology could improve the range and quality of services available to court users. In particular, the paper envisaged improved IT support for the judiciary, including electronic case filing and presentation of evidence, digital audio recording, video conferencing and improved electronic communication.
A subsequently appointed Judicial Working Group, headed by Mr Justice Cresswell, concluded that there was "a pressing need for common computerised information systems to be introduced as soon as practically possible". The Group noted that without modern and appropriate IT support, judges were not able to carry out effective control of proceedings by case management, as they are required to under the Rules.
In May 2002 the Court Service published a progress report, Modernising the Civil and Family Courts, which describes the work completed and outlines plans for the future. The five year programme includes improved case management, provision of electronic services, and introduction of in-court technologies.
The plans are ambitious and, if implemented, would transform the way in which the courts interface with court users and manage proceedings. Mr Justice Cresswell's Working Group estimated that electronic presentation of evidence could shorten trials by 25 per cent, and computer-assisted transcription could shorten them by 20 per cent. Even at the most basic level, being able to communicate with the court electronically will result in costs savings. Clearly the introduction of new technologies would help realise some of the costs savings Lord Woolf envisaged the reform of the Rules would bring.
Money Claim On Line is the Court Services' first step to bring court users an internet-based service. The claim form and payment of court fees are completed on-line; the claim is automatically issued and served on the defendant; judgment by default is requested on-line, and a warrant of execution can be sent electronically to the bailiffs at the defendant's home court.
The Electronic Presentation of Evidence (EPE) is another project in the modernisation programme. It provides for simultaneous display of evidence to all parties in a trial, via monitors permanently installed in the courtroom, using courtroom presentation software. This ensures that all involved are looking at the same thing at the same time, and a pilot trial demonstrated potential savings of up to 20 per cent in trial time.
The aims of the modernisation programme are increasingly reflected in decisions of judges who, for example, show a growing willingness to allow the parties to give evidence by video link. The scope of the Rules permitting evidence by video link was recently tested in the case of Rowland and Anr v Bock and Anr (in which CMS Cameron McKenna acted for the claimants). The second claimant, a Swedish businessman, was subject to a request for his extradition to the United States for alleged insider dealing. As he risked arrest and extradition if he entered the UK to give evidence he sought the court's permission to give his evidence by video link. At first instance the court declined, finding that receiving evidence through video link "was a second-class way of conducting a trial", and that it should only be ordered where there was a "pressing need for an order", for example, if the witness was too ill to attend in person. On appeal, the court determined that that was too restrictive and no defined limit should be placed upon the discretion to permit video link evidence as any other conclusion would conflict with the broad and flexible purpose of the Civil Procedure Rules.
The next few years will be an interesting time for litigants. Assuming the funds are forthcoming from the Treasury, and the IT works, the implementation of the promised new technology will fundamentally change the way the courts manage proceedings and how the court interacts with its users. Law firms are already poised to take advantage of the new landscape, having invested heavily in technological solutions, including electronic case management tools, scanning facilities, and internet based disclosure rooms. Unfortunately, the Lord Chancellor's Department's track record of securing working IT solutions is not good. If the system works as predicted, litigation in the civil courts should be quicker and cheaper, but it looks as though litigants may have some time to wait before they will see the promised benefits.
For further details please contact Tony Lewis at anthony.lewis@cms-cmck.com or tel +44 (0)20 7367 2976.
