Family Law

Lord Justice Briggs published his interim report regarding reform of the Civil Court structure on 12 January 2016. Since the report was released Lord Briggs has been travelling both home and abroad to conduct open consultations and review those jurisdictions which already have an operational online court system.

The latest stop on his tour was Bristol on 9 May 2016 to meet with local practitioners and service users to speak about the interim issues ahead of the July submission deadline for his final report.

The focus of the review is on the structure of the Civil Courts and the HMCTS reform programme which has made available over £730m worth of funding. The HMCTS mission statement is based around three key features: a new online court using digital tools to improve case management; the rationalisation of the court estate and less reliance on the buildings themselves with a move towards a paperless court; and the use of Case Officers to assist and manage allocated aspects of work in order to maximise the use of judicial time and resources.

While Lord Briggs acknowledged that some of the issues within his report may require adoption by way of parliamentary processes, there were, he said, things that could be done without rule and legislative changes. He has consulted and listened to a wide range of groups including importantly those representing Litigants in Person.

In creating an online system, Lord Briggs explained that the intention would be to incorporate as many of the Rules as possible to assist with inputting, managing and processing claims. While the focus of his discussion was largely on Civil aspects, there is a natural crossover and resonance with the reforms to the Family Court which Sir James Munby spoke about in his recent address to the Family Law Bar Association where he discussed the move to 'the digital court of the future'.

Lord Briggs took queries and opinions from the room and was addressed about how people who do not have online access or would struggle to use such systems are expected to cope with the shift towards digitisation. The response was that the proposals are being specifically designed to help people get online. Systems are being created for use on smart phones and tablets and there will be help accessible over the phone, online and in person. How this will be done is under consideration. Lord Briggs reiterated that the pro bono advice centres, while critical to helping Litigants in Person, cannot be relied on alone, and the Litigant in Person focus group has been set up to give thought to the organisation and funding of this element of the reforms.

Another topic discussed was the process and procedure of issuing applications. At the moment the location where proceedings are issued is an important consideration for practitioners, however with the online court this may become a thing of the past. If there is a central system for issuing applications, concern about the correct location to issue may fall away with proceedings being allocated in accordance with the needs of the matter and/or geographical location of the parties.

The emphasis on any software being developed will be to lead the Litigant in Person to answer the appropriate and required questions to ensure they have provided all the necessary information to allow their matter to be processed and in turn to flag up to court staff where judicial scrutiny is required. For practitioners, Lord Briggs said, this will mean solicitors unbundling their services and being available to help and advise where this becomes necessary (rather than for the full duration of a matter) and for barristers to avail themselves of direct access work.

Other topics raised in the consultation were issues of security in a future that may see files and information being stored in a cloud-based system, and how online systems will work to ensure the range of practice directions and pre-action protocols are complied with (without the need to expect Litigants in Person to digest such guidelines).

During this consultation period, Lord Briggs has visited the Netherlands and British Columbia, which are both ahead in their online court systems. As mentioned by Judge Peter Boshier in his keynote speech at the Resolution conference recently, the Dutch site known as Rechtwijzer was developed by the Dutch Legal Aid Board as an interactive online application for use in various cases including family law. The site provides users with a step-by-step guide to a legal conflict based on choices they have made at the outset.

Acccording to Lord Briggs, the challenge with such systems has been in the content and making sure that the inquisitorial process asks the right questions given the array of types of cases and scenarios that can be presented. Another hurdle has been the active take up of the systems and encouraging users to engage with online services. Despite this, Lord Briggs is satisfied that such systems are technically possible with the right approach. A major challenge will be ensuring the system can accommodate all types of users and make the process easy to use and understand. By way of example, he explained that the Ministry of Justice consulted the Personal Support Unit when reconsidering the fee remission form recently and the first piece of feedback was that the title should be changed to 'help with fees'. It is clear that any language used must be simple and straightforward and it will be vital to consult with services such as the PSU who help court users on a daily basis.

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