April 30, 2001

Modernising the Civil Courts

In a general welcome for the proposals and new funding, the SCL responsemakes it clear that there is a great deal still to be done and that it is vitalthat the right approach is taken now. It states, for example, that ‘it isessential that modernisation (including the physical and systems analysisinfrastructures) be conducted with a view to uniformity and consistency ofapproach wherever possible. The old ethos of compartmentalisation must go. Inaddition, the same techniques must be used in the High Court as in other courts.It is more complex, initially to accommodate more variables, but the end resultwill be worth the investment.’Two particular aspects of the response caught my eye, although they areinextricably linked. The first is the emphasis laid on the development of theelectronic case file. The SCL reponse states:

‘The key to the great majority of “right answers” to the questionsposed in the consultation paper will lie in the eventual robust, accurate andflexible design of the whole structure of the file, and access thereto, byexperts armed with total command of the practical workings, and futurerequirements, of the civil (and other) legal processes. From that design willflow answers to what can be achieved using that tool, and what practicallimitations there are on the improvements that IT can bring. The importance ofthis design cannot be overstated, and resources (of both time and money) devotedto that will never be wasted.’

It is tempting to think of the electronic file as ‘the court file’ butworthwhile developments will be achieved most readily when one recognises thatthe file has to allow benefits for all involved rather than being seen as ameans for greater efficiency within the court (however widely defined). I am notsuggesting that the Consultation Paper itself has a limited vision but I do fearthat the natural order of things will lead to a tendency to lay emphasis on thebenefits and savings to the court and judiciary and that concomitantdifficulties for litigants and their advisers may be overlooked. It is a messagewhich has appeared in these pages before, but it bears repetition.

The linked area of particular interest to me is XML. The Consultation Paperitself asks how XML schemata should be developed in order to secure the widestpossible uptake and exploitation. The question itself is encouraging; it is verydefinitely the right question to ask. I don’t think that I could hope toimprove on the official SCL response:

‘What is essential is that the grammar, so far as litigation is concerned,is developed by those who will be using it, that is to say, practitioners, thejudiciary and the court staff, assisted/informed by people such as softwaresuppliers. The SCL is a body which includes members of all these classes and theSociety proposes the institution of a joint working party, including experts inthe field, Court Service consultants and the Society for that purpose. It is acomplex subject, and the Court Service should be in no doubt that there is noquestion of this being a matter which it can or should attempt to develop on itsown or even as the lead participant.’

I have but one thing to add on this topic. It is apparent that among SCLmembers involved in IT applications are many who remain somewhat ignorant of thesignificance of XML. If you fall into that category, it is time to considermaking yourself familiar with XML and its potential.

It is easy to be fooled into thinking that Modernising the Civil Courts ismerely another in a long line of ‘crucial developments’ for the future whichwill turn out to be all words and no action. This time there is money allocated(probably not enough but a substantial amount) and the appointment of LordJustice Brooke as ‘judge in charge of modernisation’ is significant (andwelcome). This time I think it will be different.

Next up: E-Conveyancing

The Lord Chancellor likes to keep SCL busy. His consultation paper on e-conveyancingalso requires a response, and clearly its proposals have far-reachingimplications for practitioners, some of whom live in the world that likes toturn a blind-eye to IT advances. But outside that minority group are a largenumber of conveyancing practitioners who have embraced technology and some havebeen responsible for imaginative advances (particularly in case management andclient communication) which have benefited their brethren in other areas ofpractice.

SCL hopes to respond constructively to the Consultation Paper and to reflectthe full range of expertise of its members. If you are interested in responding,contact Barry Sankey at bsankey@brownej.co.uk,putting E-conveyancing in the tile of the e-mail.

Laurence Eastham

See PDF Here