While the Courts of England and Wales have talked about modernising and digitising for decades, the last five years have seen increasingly rapid change and a substantial programme of modernisation is currently underway, welcoming with it a tangible transition from traditional ways of working to embracing digital ways of working.
Various pilot schemes have been implemented, aimed at improving access to justice, promoting pre-action and early-stage dispute resolution, reducing the number of claims reaching trial, improving the cost-effectiveness and efficiency of civil proceedings, and generally bringing the Court system into the 21st century.
Several of these schemes are scheduled to end in 2023-2024, which raises the linked questions: where does this leave us and what next?
Electronic Working Pilot Scheme
The Electronic Working Pilot Scheme was introduced in the Rolls Building Jurisdictions in London (comprising the Chancery Division in the High Court, the Commercial Court, the Technology and Construction Court, the Circuit Commercial Court (formerly the Mercantile Court) and the Admiralty Court) on 16 November 2015 under Practice Direction 51O (PD 51O).
Under the pilot, parties are able to issue proceedings and file documents online 24 hours a day, using the courts’ electronic filing system, CE-File. PD51O has been through a series of further amendments and extensions, and is now compulsory for professional court users in the Business and Property Courts (B&PCs) in London, the District Registries of the B&PCs, the King Bench Division, the Senior Courts Cost Office, various County Court hearing centres, and the Court of Appeal.
The scheme has recently been extended to 6 April 2024 and it should be noted that, while described as a pilot, it is not expected that electronic working will be withdrawn. It is understood from HMCTS that the scheme is viewed as a pilot because CE-File is still under development and in the process of being rolled out to further courts. For example, according to the latest version of the King’s Bench Division Guide, released in September 2022, the Civil Procedure Rules Committee will redraft PD51O to cover electronic working in CPR 5 (in respect of court documents) towards the end of the pilot period.
The expectation is, therefore, that the Electronic Working Pilot Scheme is here to stay, with the vast majority of civil claims administered through CE-File.
Online Civil Money Claims Pilot Scheme
The Online Civil Money Claims pilot scheme (OCMC) was introduced from 7 August 2017, with the purpose of testing an online claims process intended to provide a quicker, simpler, more user-friendly way to deal with certain low value claims (of up to £10,000, or £25,000 where both parties are legally represented) in the County Court.
The rules governing the operation of the OCMC are contained in Practice Direction 51R (PD51R).
The OCMC has been widely adopted. The Ministry of Justice announced that over 100,000 civil money claims were issued in the first 18 months following the launch of the service, with most people taking less than 15 minutes to complete the initial claim form, and almost nine out of every 10 people declaring themselves satisfied with the service. Hundreds of thousands more claims have been dealt with by OCMC since then, meeting Master of the Rolls, Sir Geoffrey Vos’ expectation that the OCMC would become “ubiquitous” for small money claims.
The OCMC pilot is currently due to run until 30 November 2023 but it seems likely that the online claims process enshrined within PD51R will continue, and likely go from strength to strength, given the number of claims now being successfully dealt with under it.
Damages Claims Pilot Scheme
The Damages Claims Online pilot scheme (DCO) was introduced by the 132nd Practice Direction (PD) Update under Practice Direction 51ZB (PD 51ZB) and runs from 28 May 2021 until 30 April 2024 (unless extended).
The pilot scheme is intended to test an online claims process for County Court damages claims in which parties are represented by a legal representative registered with the service, with claims managed using an online portal called the Damages Claims Portal (DCP). Using the DCP, parties are able to digitally issue and serve proceedings online, upload particulars of claim, file defences (and requests for extensions of time for service of defences) and replies, and provide initial case management and hearing information.
In-scope claims are claims for damages in the county court which would ordinarily follow the “traditional” Part 7 claims process, excluding those: involving protected parties, claimants subject to Civil Restraint Orders or similar, and claims brought under the Consumer Credit Act 1974.
The modification and development of the DCP continues at pace, with HMCTS having received a significant amount of feedback. It remains to be seen whether the DCO will be extended beyond its current April 2024 end date.
Small Claims Paper Determination Pilot Scheme
The Small Claims Paper Determination Pilot (SCPD) was introduced by the 143rd PD Update under Practice Direction 51ZC (PD 51ZC). It allows the court to direct that certain small claims (excluding those outlined, such as personal injury small claims and housing disrepair claims) be determined on the papers, without a hearing and without requiring the agreement of all the parties.
This is a potentially very significant change to the CPR, particularly if the SCPD is extended both in time and reach. It will be interesting to see how widely the SCPD is adopted in practice; the need to improve the efficiency of the small claims track and free up resources is a clear driver behind the SCPD, but it is not difficult to imagine that unsuccessful parties may be left dissatisfied, resulting in more appeals.
The SCPD will operate for two years, from 1 June 2022 until 1 June 2024, unless extended, in six pilot courts.
Where to next?
It is the Master of the Rolls’ hope that, by the mid-2020s, Court users can expect an “integrated online digital justice system to resolve civil family and tribunal disputes”.
It is intended that an Online Procedure Rules Committee (OPRC), which was legislated for in the Judicial Review and Courts Act 2022 (which received Royal Assent on 28 April 2022), will be the body responsible for the governance of this digital justice system and for helping to realise its benefits.
The OPRC will, amongst other things, establish a “governance framework” to facilitate the development of pre-action, online dispute resolution portals, which it is hoped will eventually be integrated with the digital court system, enabling claims which aren’t resolved in the portals to be transferred to the relevant court without users having to provide the same information twice.
There seems little doubt then that, with Sir Geoffrey Vos continuing to spearhead the drive towards the modernisation and digitisation of the Courts (alongside a seemingly increasingly willing and technologically adept judiciary) in a bid to improve efficiency, transparency, ensure matters are dealt with at proportionate cost, and improve access to justice, changes such as those outlined above are only likely to continue to gather support and pace.
For more insights on the pilot schemes outlined above, or the modernisation and digitisation of the Courts more generally, please get in touch with Rob Griffiths and Ross Keeble.
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