Court reforms “must measure impact on vulnerable litigants”

Video-only hearings: Impact must be evaluated

A high-powered body of experts has called for more detailed evaluations of the government’s ambitious court modernisation programme, and complained about the lack of data on the impact of the reforms.

The government said last week that the finish date for the £1bn courts modernisation project was being extended by a year to 2023.

The academic research, Developing the detailwas undertaken by the Legal Education Foundation (LEF) and professors Dame Hazel Genn of University College London and Abigail Adams and Jeremias Prassl of Oxford University, as part of a pledge by HM Courts and Tribunals Service (HMCTS) to commission external evaluations of the effect of the reform programme on access to justice and fairness.

Their draft report was based on two workshops in late 2018, bringing together 38 experts in online dispute resolution, public law, civil procedure, access to justice research, court administration and evaluation.

Proposals, published for comment by 22 March, included building in throughout an assessment of the impact of new services on vulnerable individuals, as defined by 13 characteristics, including age, disability, income, race, sex, and language.

Also, the experts said, the reforms should be measured according to an understanding of access to justice based on four minimum standards: access to the formal legal system, to an effective hearing, to a decision according to substantive law, and to remedy.

For example, expressing suspicion that the business case for the reforms was heavily skewed towards mediation and resolution, rather than vindicating rights, the workshop participants “strongly recommended” that access to justice evaluations of the reforms “must capture the impact of reform on the types of cases that are being decided before the courts and the individuals who bring them”.

Describing a lack of available data on HMCTS’s assumptions, the experts urged it to publish estimates of the numbers of people affected by key changes, such as fully video hearings.

They recommended “that HMCTS set out these estimates at the earliest possible opportunity in order to: (i) guide the design of the evaluation and (ii) assist the legal advice and legal services sector in preparing for the impact of reform”.

So far, court reforms already up and running include a civil money claims service for low-value disputes, a pilot of fully-video hearings in the tax tribunal, and online divorce and probate services. The Ministry of Justice claimed recently that the programme has already realised £158m in “benefits”.

Meanwhile, leading access to justice researcher Professor Roger Smith has argued that HMCTS is rushing headlong with the reforms before their impact on litigants had been fully tested, or their objectives clarified.

Blogging about the LEF report and the reforms generally, Professor Smith welcomed the recommendations, but said the problem was that the HMCTS project was “too big and too fast”.

He echoed the report’s call for “data by which the courts services can be seriously analysed”, including hypotheses on which the reforms were predicated.

He continued that the initial focus on pre-litigation resolution, stressed as vital by Lord Briggs when he first outlined an online court for small claims in 2016, had been sidelined by HMCTS.

Yet, he said, this was “all the more necessary” to mitigate the impact of the cuts to legal aid implemented since Lord Briggs reported.

He added: “It would help to bridge the gap between the Citizens Advice Service, for example, and actually being a litigant-in-person.”

Next week’s Legal Futures Civil Litigation Conference includes a session on court modernisation. A few tickets are still available. See here for all the details.

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