Rules for all – a challenge for the online court

As part of HM Courts and Tribunals Service’s reform programme, an online court will be created, which will require a new set of rules.

In June this year the government in British Columbia, Canada went live with its new online Civil Resolution Tribunal (CRT). In a blog post the CRT said:

‘The CRT’s Rules are set by the Tribunal Chair. But we think they belong to all British Columbians. Because of that, we want the rules to be as accessible and understandable as possible.’[1]

As most people involved in civil law proceedings in England and Wales are not eligible for legal aid, can’t afford to pay for legal services, and therefore have to represent themselves,[2] we here at Law for Life agree that court rules should be for everyone, not just lawyers.

Concerns

We know that there are concerns about how to meet the needs of both litigants in person (LIPs) and lawyers in one set of rules. We would like to address some of those concerns in this blog.

Too complex for LIPs

There is no doubt that the law can be fiendishly complex and that simplifying the rules will not be an easy task, nor one that will compensate a LIP for not having a lawyer.  However the reform programme and move to the online court is a wonderful opportunity to re-engineer the system so that the ordinary court user is at its heart, using technology to strip away some of the barriers and complexity that litigants in person currently face.

A report on government forms by the National Audit Office concluded that simply reviewing existing forms only produces small design improvements, whilst ambitiously re-engineering produces more radical changes. Using plain English, segmenting audiences, asking only essential questions, providing ‘quick start’ information, clearer signposting, intuitive sequencing, more worked examples, checklists and flowcharts reduces the burden the form imposes on the citizen.[3]

If the technology of the online court is able to reduce the burden on LIPs by streamlining their progress through the system in this way, they are likely to have less recourse to the rules. This is explicitly acknowledged by British Columbia’s Civil Resolution Tribunal:

How will People use the Rules?
If we’re being totally honest – we hope people using the CRT don’t actually have to read the CRT Rules. We try to build processes and guides that speak for themselves, and give you the information you need, when you need it. But when people need or want to read our complete rules, they are available.’[4]

If the system is simpler, it will be easier to make the rules simpler.

We acknowledge however that this will still be a very challenging task, and one that would benefit from involving those who work with litigants in person in the nitty gritty of some of the drafting.

Too simple for lawyers

There is a view that if you make the rules simple enough for LIPs, they will encourage too broad a degree of discretion or multiple interpretations by lawyers.

Our view is that the substance of the rules will not change; their intent will simply be expressed with greater clarity. Plain English demands greater precision, as ambiguity is less easy to conceal when things are easy to understand (although it may take more words).  And clarity benefits everyone. In fact research into legal communication found that the greater the specialist knowledge the greater the preference for plain English.[5] Certainly lawyers will not be disadvantaged by being able to follow the online court rules quickly and easily.

However, if the rules are inaccessible and difficult to understand many LIPs will be disadvantaged, and more broadly the consequences for access to justice are very negative.

One set of accessible rules

Law for Life believes that whilst it will not be a straightforward endeavour, a single set of rules can be developed for the online court which meets the needs of both litigants in person and lawyers.

 

By Theresa Harris, LFL Head of Information and Digital Innovation

 

[1] https://civilresolutionbc.ca/crt-small-claims-rules-consultation/
[2] Access to Justice for Litigants in Person (or Self-Represented Litigants): A Report and Series of Recommendations to the Lord Chancellor and to the Lord Chief Justice, Civil Justice Council, November 2011: http://www.judiciary.gov.uk/wp-content/uploads/2014/05/report-on-access-to-justice-for-litigants-in-person-nov2011.pdf

[3] Helping individuals understand and complete their tax forms, 2007, National Audit Office: http://www.nao.org.uk/report/helping-individuals-understand-and-complete-their-tax-forms/

[4] https://civilresolutionbc.ca/crt-small-claims-rules-consultation/

[5] The Public Speaks: An Empirical Study of Legal Communication, Christopher R Trudeau, 2012: http://works.bepress.com/cgi/viewcontent.cgi?article=1000&context=christopher_trudeau

Published: 1 November 2017

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