CMS Expert Guide to Digital Litigation in England and Wales

We are living through a period of radical reform to our civil justice system. It is thought to be too slow, too expensive and too difficult to access. A new digital dispute resolution landscape is being promoted, central to which is the conviction that shifting legal dispute resolution away from paper and physical courts and into an online environment will help to satisfy the twin demands of increasing access to justice while significantly reducing system costs. Advocates of reform consider the current system to be unsustainable and regard increased digitalisation as the only realistic solution.

The principal changes experienced currently relate to the resolution of lower value civil claims, in particular so-called “whiplash” injuries, long considered a scourge of the English/Welsh justice system, and other lower value personal injury claims. However, the vision of those driving the current reforms, in particular the Master of the Rolls (head of civil justice), Sir Geoffrey Vos, is altogether more comprehensive and radical. We appear to be in the foothills of a transformation, which – if successful – will leave few areas of civil dispute resolution untouched.

Online claims “portals”, complete with fixed fee tariffs, have been operating for some years, initially to assist with the resolution of low value motor claims but, from 2013, extended to cover lower value (sub-GBP 25,000) non-motor personal injury claims. The civil justice reform programme, however, with its commitment to an increasingly online process, began in earnest in 2014 when the Ministry of Justice announced that HM Courts and Tribunal Service (HMCTS) would deliver a programme of reform expected to deliver over GBP 100 million per year in savings by 2019. Central to the reform programme was the harnessing of information technology, including online processes, to facilitate dispute resolution.

Lord Justice Brigg’s Civil Courts Structure Review Final Report of 2016 was a significant milestone. That report recommended the introduction of an Online Court for money claims of up to GBP 25,000 and provided the backdrop to the development of a broader vision for digital transformation of the civil justice system.

Currently various claims portals, designed to accommodate different claim types, are in operation or are being piloted. Recent additions to the online landscape include: the Damages Claims (DCP) Portal (processing of County Court damages claims); Online Civil Money Claims (OCMC) Portal (processing of claims for a specified amount of money, limited to GBP 25,000); Official Injury Claims (OIC) Portal (processing of “whiplash” injury claims). In addition, numerous consultations have been conducted seeking stakeholder opinion on reform to various components of the current system. 
To those lawyers who are tempted to consider that reforms will only affect lower value claims, Sir Geoffrey Vos recently said: “We are coming for you!” The trend to digitalise looks set to continue up the value-and-complexity tree.

What is envisaged is a comprehensive end-to-end online dispute resolution process, new technology being adopted not merely to introduce efficiencies to the existing structure but to deliver a new, more efficient and cost-effective system, which embeds alternative dispute resolution and minimises the need for lawyer involvement. A three-stage process is envisaged. The front end will be to use Vos’ terminology, a wide funnel into which all manner of civil disputes are introduced (Stage 1). Claims will be categorised and directed to the most appropriate pre-action process, utilising AI technology (Stage 2). Most disputes will be, it is assumed, resolved at that stage using various forms of alternative dispute resolution processes. For those few that remain, their data will be transferred to the relevant online justice process (Stage 3) for determination. That, at least, is the vision.

The reforms take place against the backdrop of a steady shift away from in-person court hearings to telephone or video hearings, a trend given enormous impetus by the COVID-19 pandemic.

A critical piece of the online architecture was the creation of the Online Procedure Rules Committee (OPRC), under the Judicial Review and Courts Act 2022. The OPRC will govern the new digital landscape, its stated goals being: increased access to justice; increased dispute resolution efficiency; reduced cost; wider economic benefits to society; the provision of a justice system, which will contribute to the rule of law in an increasingly technological society.

Two major questions remain: will this brave new digital landscape be adequately funded and, in the rush online, what provision is to be made for the “digitally disadvantaged”?

In relation to the former, critics would point to the woeful state of court funding currently and the struggle to equip all judges with even the most basic technology, certainly in the lower courts. Little has been said about the latter, other than to acknowledge the problem.

The vision of a seamless, end-to-end, online civil dispute process still seems some way off.

A wide range of measures is used routinely. For example: video hearings (subject to the court’s discretion but far more widely utilised following the testbed provided by the COVID-19 pandemic); the creation of e-bundles and the e-filing of court documents; electronic communications between parties and, increasingly, the court; and online portals for processing various forms of claim. Post-pandemic, virtual hearings remain an option, although most court advocates would say that the ability to cross-examine in person is invaluable and, increasingly, trials are now listed to be heard in person once again.

The creation of online portals for processing a variety of claims has provided a rich source of claims data. For example, the Ministry of Justice provides quarterly reports derived from OIC Portal data detailing claims volumes, the proportion of those legally represented and settlement numbers. Similar reports are derived from the Motor and Employers and Public Liability Claims Portals, the DCP and OCMC Portals.

Digitalisation provides an opportunity for detailed analysis of civil claims, an insight that will no doubt be used to shape the continuing process of civil justice reform. It can also raise questions about the suitability of the process. For example, the OIC was designed to enable those without professional legal advice (“litigants in person”) to bring and defend whiplash claims. Yet OIC data reveals that the vast majority of claimants continue to be legally represented. It appears people still value professional legal support, even when accessing an online process specifically designed to cater to those who lack access to this support.

We have yet to see artificial intelligence play a role in dispute resolution, but the Master Of The Rolls does envisage a role for such technology in triaging online claims via online “decision trees” and allocating them to the appropriate pre-action process. He has even discussed the role AI might play in resolving more straight-forward disputes, although his observations have proved controversial.

Certain instruments, such as the claims portals designed to process certain claim types, are compulsory. Courts retain control over the manner by which disputes are processed, within the framework provided by the Civil Procedure Rules, and determine whether a particular hearing is to be conducted by telephone, video or in person. The Civil Procedure Rules, which govern the conduct of civil litigation, mandate which communications and documents may be sent by email. Practices differ across different specialist courts. In short, the current system is a complex mixture of online processes, electronic communications, postal communication, virtual and in-person hearings.

There is increasingly strong pressure on practitioners to actively explore forms of alternative dispute resolution or face penalty. A recent Ministry of Justice consultation on dispute resolution made the following observation: “What have hitherto been regarded as “alternative” methods of dispute resolution need to be mainstreamed within online processes, and within the culture of the legal system, those who work within it, and the consumers and businesses it serves “. The extent to which alternative dispute resolution can or ought to be mandated is under consideration. 

The current landscape can appear to be a rather confused hotch-potch of partly digital, partly non-digital processes. However, the direction of travel, as regularly described by Sir Geoffrey Vos and others, is towards a harmonisation of online processes and the creation of an “end-to-end” online system described in response to Question 1. That overarching vision is probably under-appreciated by many practitioners.

We are far from a fully digitalised litigation system, although Sir Geoffrey Vos himself considers that we are well on the way to the convergence of the various online processes and the realisation of his proposed three-stage process for dispute resolution. 

All civil litigation is subject to the Civil Procedure Rules (CPR), a body of rules governing every aspect of the civil litigation process from commencement of proceedings to final resolution, including entitlement to costs. In addition, most civil claims are subject to specific protocols to be followed prior to the commencement of formal litigation. These “Pre Action Protocols” (PAPs) are codes of best conduct backed by the risk of costs sanction once litigation commences should a party fail, without good reason to follow them.

A consultation is currently underway, which asks whether compliance with PAPs ought to be mandatory and seeks views on whether all pre-action processes should be available entirely online, among other potential reforms. Creating online PAPs would be consistent with the civil justice reform direction of travel and an important component of Sir Geoffrey Vos’s three-stage end-to-end online civil dispute resolution process. The outcome of that consultation is currently awaited but that development has widespread support.

The CPR governs the use of technology in litigation, for example by detailing when and in what circumstances electronic communications are allowed or required and, through various practice directions, establishing the rules governing the operation of various online portal processes.

Those rules are subject to review by the Civil Justice Council (CJC). The CJC’s statutory duty is to review the civil justice system and make recommendations to the Lord Chancellor, the judiciary and the Civil Procedure Rule Committee on the development of the civil justice system “to make it more accessible, fair and efficient.” (CJC website). As such, the CJC engages in consultations with stakeholders regarding proposed changes to the rules, which have included the utilisation of technology. To that extent, debate does take place and the views of stakeholders are considered.

At the statutory level, legislation that engages with the development of digitised justice, for example the Judicial Review and Courts Act 2022 introducing the OPRC (see Question 1), is subject to the usual parliamentary scrutiny.

More informally, members of the judiciary directly involved in the civil justice reform programme regularly engage in debate and discussion, seeking the views of lawyers, academics and consumers of legal services. These and other threads feed into the debate.

On 15 February 2023, the House of Commons Public Accounts Committee announced that it had launched an Inquiry and “Call For Evidence” in relation to the progress that had been made in the court reform programme. In 2019, the Committee had raised concerns about the effect of the reform programme on access to justice by those who struggled to access or use online resources. 

Yes.

A number of pilot claims portal projects have been run and some are continuing. Live pilots include the Damages Claims Portal and Online Money Claims Portal referred to in Question 1.

The recent consultation on Pre-Action Protocols is likely to result in a recommendation that all such protocols be available online. The final report of the CJC, following consideration of the responses, is awaited.

Given how far we are currently from the vision of a seamless end-to-end digital justice system, there will no doubt be further pilots and consultations in the months to come.

As noted above, we have yet to see AI play a direct role in the resolution of disputes in the courts of England & Wales and, accordingly, there are no specific regulations or procedural rules in relation to the use of AI. However, we are seeing increasing use of AI systems in the management of documentation and the disclosure process, especially in circumstances where the documents collected by a party number in the hundreds of thousands or millions.

Document review software has been in use for many years and is effective in the management of large sets of documents, enabling the size of the review set to be reduced by the removal of duplicate items, and the filtering and sorting of the documents to make the manual review process structured and manageable.

A more recent development is the use of Technology Assisted Review (TAR) software. This software can be used to determine the likely relevance of a document to the issues in dispute. This is achieved when a lawyer reviews a small proportion of the documents and grades them in relation to their relevance to the issues.  Following several iterations of this process, TAR software can determine the likely relevance of each document in the review set, enabling the legal team to prioritise the review process and save considerable time and cost.

Use of these systems is not governed by the court’s procedural rules but the court exercises oversight of their use on a case-by-case basis through the general case management process.  The court will be keen to ensure that the use of these systems is robust and appropriate in the circumstances of the case when taking account of the volume of documentation to be reviewed.

As noted in the response to Question 1, it is anticipated that there will be greater use of AI by the courts in future, and it can be readily assumed that appropriate procedural rules will be developed in line with implementation of such processes.

Clients and firms mainly drive this. Clients are imposing requirements on firms based on their own infosec requirements and firms are responding to this and to the requirements of regulators, insurers and the market generally. While there are no absolute requirements, many firms in the UK are certified against or aiming at ISO27001 and, in the public sector space, Cyber Essentials.

In terms of technical measures, there are a range, depending on the system, the nature of the data it contains and how it is hosted (i.e. whether in the cloud or not).  There are no standards, but suppliers that do not provide systems that do this will not tend to be bought.  Controls tend to fall into four categories:

• Identity – including controls around password length and complexity (which are standard), multi-factor authentication (which are becoming more common), etc.
• Application Permissions – controlling what a user can see/do in an application.  These tend to be group or role based.
• Infrastructure – Encryption of data at rest and in transit is standard. There are a rising number of applications that allow for “Bring Your Own Key” (which essentially means that encryption is done using a customer’s keys rather than the supplier's).  There are also firewalls and intrusion prevention and detection.
• Auditing / Reporting – Finally, many applications provide functions to audits, specifying who has done what and looked at what. While this isn’t a preventative measure, it does help if there is a suspicion that something has gone wrong.

In terms of rules around use of data, three areas stand out:

• our professional obligations around client confidentiality.
• data protection rules around the use and processing of personal data (GDPR).
• existing rules within the Civil Procedure Rules, which regulate the processing of data (e.g. the prohibition on a party relying on documentation disclosed in separate proceedings without consent or leave of the court).  

New digital tools have played an important part in increasing the risk from class actions and collective proceedings in Europe.  Although Europe is introducing more procedures for US-style opt-out class actions, the majority of procedures are still opt-in.  Under the former, the class automatically coalesces (i.e. potential class members don’t need to make a positive election to join) whereas under the latter the claimant law firm or claims management company must persuade potential claimants to join the group. This can be a significant, complex and expensive process. New technologies assist in these processes (thereby increasing the litigation risk for defendant companies) in the following ways: (a) social media campaigns can be a cost-effective and targeted way of reaching the potential class members, pushing the claimant-side narrative and persuading people to join the claim; (b) rapid onboarding platforms are designed to convert potentially interested persons to class members smoothly and rapidly with minimal information and effort required from the putative class members; (c) new software packages and technologies allow claimant law firms both to analyse evidence and communicate with class members in more efficient ways than previously possible; and (d) specialist companies assist with the distribution phase to help with payments from settlement or following a trial.

The combination of these factors has greatly increased the ability of claimant law firms to bring opt-in claims, such that those claims will typically have more class members than previously would have been the case. In addition, cases that previously could not have been brought are now viable.

Many claimant-focused law firms operate chatbots on their websites enabling potential clients to provide information about a claim and enquire whether the law firm will be able to assist. While these chatbots may enable claimants to obtain some basic legal advice, they are, of course, operated for the benefit of the law firm.  Accordingly, any advice provided will be focused on determining whether the claimant has a potential claim and requires the services of a lawyer rather than providing advice that will enable the claimant to resolve the dispute without a lawyer.

In some cases, law firms operate an online “claim form” enabling claimants to register a claim. This type of facility is effective for some forms of low-value claims, especially where the law firm is operating on a conditional fee or no-win-no-fee arrangement, or is working with litigation funders who will cover the costs of the claim. An example would be class action litigation where many claimants bring a claim against a company following a data breach and all claims are based on the same set of facts.