Online rule committee will be catalyst for digital justice, says Birss

Birss: Significant benefits

The work of the new Online Procedure Rules Committee (OPRC) will help connect the whiplash portal and other pre-action regimes to the court system electronically, the deputy head of civil justice has said.

Lord Justice Colin Birss highlighted the importance of the OPRC in facilitating digital justice and ensuring it was not effectively governed by coders.

The Judicial Review and Courts Act 2022 became law in late April and this sets up the OPRC, which has a cross-jurisdictional remit for civil and family justice and the tribunals.

The plan for digital justice is to have a single online point of entry for all those with a dispute. Then there will be a completely online pre-action stage, which Birss LJ said would consist of a variety of dispute resolution portals. If unresolved, cases would move electronically to court/tribunal.

In a recent speech to the Online Dispute Resolution (ODR) Forum in Dublin, he explained that the state would not necessarily create the ODR portals. “What it will do is facilitate their creation by forming a governance framework, under the OPRC. This will allow the market to set the ODR portals up and the OPRC will provide the data standards to ensure they integrate properly with the courts digital system.”

He pointed to the Official Injury Claim (OIC) portal for whiplash claims, which was built by the Motor Insurers Bureau.

The OIC is governed by pre-action protocols and practice directions drafted by the Civil Procedure Rule Committee. “I can tell you from personal experience, that setting up the protocols and PDs was a cumbersome rule-making process given the need for work between IT people and rule makers,” the judge recounted.

“If this process was done as well as it could be, then for cases which are not resolved in the portal, the user would simply press a button in the OIC portal and, via an API (application program interface), issue the appropriate claim in the court.

“All that is needed for this process is the data, which is in the portal, and an API which connects the portal to the courts. Sadly, we couldn’t get that done in the original system, but we will get it done in the future.”

Such integration would deliver “significant benefits”, he went on.

Birss LJ, a former intellectual property (IP) specialist, said a similar system could help deal with unmet need for access to justice in very small IP claims worth less than £10,000.

“The difficulty is that these are quite specialised claims and the dispute is so small that it’s very difficult to see how any professionals could make a business model which would allow them to help.”

A conference he attended recently proposed a specialist ODR portal for IP claims which would allow the creation of an appropriate dataset for that case.

“Then, via the API with the court’s system, for the cases which do not resolve in the portal we can take advantage of the clarification of the issues and start the action in the small claims system.”

The “other critical part of this jigsaw puzzle” – a single IT system for civil, family and tribunals – already existed and was being developed as part of the court modernisation programme.

Aside from ensuring that digitally disadvantaged people were properly provided for, he identified two major challenges: the governance of pre-action portals, “which is covered expressly in the new OPRC provisions in the Act”, and the practical governance of court’s processes in IT systems.

Birss LJ said: “When a dispute progresses in the medium of the IT system, the coders are in effect setting the process of justice itself. So, there is a need for appropriate practical governance and the OPRC is how we will do this in the future…

“The likely approach could be something like this. The OPRC could confine itself in rule-making terms to setting out high-level principles and data standards. There will be a need to document the IT systems themselves, but it may not necessarily be the right thing to do in a rule format.

“It has proved to be a very cumbersome experience in Online Civil Money Claims. For example, there is an incomprehensible practice direction called PD51R. It exists as it does because it was the only way we could think of to write down what the IT system did, to make sure that it was not coders who decided what the process of justice was, but appropriately governed rule makers.

“Although the rules themselves are almost incomprehensible, the users of the system find it very easy to use, which tells you something important; users don’t need to know what the rules are, but need a well-designed system, which will tell them what they need to do and when.”

The way to achieve this was through a system specification, rather than traditional rules, he said.

“This is, in effect, a collision of traditions between the lawyers, on one side, who would like to see it written in something resembling law, and the coders on the other, who don’t want it to be written at all.

“We have to find this balance between those two schools of thought. This is work that is going ahead very soon.

“The end result will be something quite significant, dispute resolution which is online from start to finish in smart systems.”

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