Birss: Focus on the nuts and bolts
The deputy head of civil justice has called for a “standards first” approach to digitisation, enabling those involved in a dispute to arrive “at any point” in the system and potentially delivering “transformative change”.
Lord Justice Birss said that, at the pre-action stage, data standards would enable “appropriate specialists” to handle cases away from “centralised state-controlled systems”.
He went on: “This is the potential for a win win. Well-designed specialist portals for particular areas – and a generalist court and tribunal system to which it can connect if need be.”
Birss LJ said a focus on the “nuts and bolts” – the data flowing between actors in the justice system – would facilitate access to justice and would underpin the court digitisation programme.
“Individuals involved in a dispute of some kind can arrive at any point in the system. If the matter can be resolved outside a court or tribunal it will be – whether because of advice, or mediation or an ombudsman or another dispute resolution system yet thought of.
“None of this will prejudice the right of access to the courts. Court will be a last resort, as it should be, but that does not mean it should be difficult to access for the cases which need it.
“We do not have to build a single public sector monolithic IT programme at huge cost and with huge complexity to provide the interconnected system we need. In fact, the opposite is true.
“The courts and tribunals have a public IT system, which offers something of a platform. It should be accessible for any sort of case, with a generic interface properly specified with data standards, so that it is there to be used whenever needed.”
Delivering the Competition Law Association Burrell lecture, Is a focus on data the way to improve access to justice in a multifaceted world?, the judge recalled the publication by Joseph Whitworth in 1841 of a standardised screw thread design specification, regarded as the world’s first technology standard, and the protocols or standards behind the internet.
Whitworth and the internet showed it was “possible to have a profound impact without being the builder of a machine”, by creating a standard.
Under the Judicial Review and Courts Act 2022, the online procedure rules committee (OPRC) had been given for the first time “the express authority to make provision for and to set digital standards in relation to the pre-action space”.
Birss LJ said once the OPRC had done this, the standards would amount to a platform which developers could build on.
“This will offer benefits wider than simply transferring data to the court. Consistency in the underlying technology, should help an individual litigant navigate through the whole of the digital justice system before they ever get to court.”
Data standards would in time mean that people would not have to “repeatedly tell their story or repeatedly upload documents”.
The “beauty” of the data standards approach was that it did not require the government to “commit to building a major IT system”, or to “build the whole thing in one go”, since “improvements in interoperability can happen gradually”.
The need for a single point of entry to the justice system could be solved in a “different way”.
If all providers shared common data standards which allowed “simple connections to be made between them as appropriate”, it did not matter where in the system a person arrived.
“They may arrive at the ‘wrong’ place, but that provider can still send them somewhere else – perhaps to a general advice provider which is set up to help them or at least set up to direct them to the right place.”
The standards-first approach might also allow the justice system to tackle the “old difficulty” of “multifaceted problems”, which had been hard to solve.
For example, the Housing Ombudsman’s “excellent user interface” could be adapted so it could handle complaints involving private as well as a public landlords.
Where housing complaints have an associated personal injury claim, perhaps harm caused by mould, the provider dealing with the housing issue could be linked to the one handling the personal injury issue.
Birss LJ predicted that allowing the different parts of the digital justice system to communicate with each other would be “transformative”.
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