Internet hearings also usher in inquisitorial justice by back door
The Bar Council has hit back against new online court proposals, arguing that the recommended set-up would undercut junior lawyers and their professional development.
The modernisation of the courts through an online dispute resolution system has been a contentious talking point for months, particularly since January when a leading judge publically endorsed the idea. Lord Justice Briggs — deputy head of civil justice — said in his 2015 report that this tech-heavy system:
[O]ffers the best available prospect of providing access to justice for people and small businesses of ordinary financial resources.
But he also said that the online court:
[W]ould be the first court ever to be designed in this country, from start to finish, for use by litigants without lawyers.
It’s perhaps unsurprising, therefore, that lawyers have been up in arms about the proposals, arguing that the cost-saving mandate driving the initiative does not outweigh its access to justice implications.
The Law Society spoke out from the get-go, and today was the turn of the Bar Council. In its response to Briggs’ report, the Bar Council raised a number of concerns about the strength of access to justice in a tech-based court system, and was particularly concerned about the potential impact on junior lawyers.
The proposed online dispute resolution service would be introduced to resolve low-cost civil claims up to the value of £25,000. As the report points out:
These are cases which are usually dealt with by the junior Bar, which can offer cost-efficient advice and representation.
There is a real fear that a shift away from baby barristers towards lawyerless courts would halt young advocates’ learning and development, “since it is by appearing in [low value] cases that barristers acquire experience and hone their advocacy skills.”
At last night’s Legal Cheek’s careers event at Lincoln’s Inn — ‘Commercial Awareness Question Time’ with Hardwicke and RPC — it was evident that there are a number of competing views out there about what technological innovation means for junior lawyers.
The panel was optimistic that tech developments would free up junior lawyers from basic tasks, allowing them to read up on their chosen specialism and become better lawyers. Though broadly agreeing with these sentiments, commercial barrister PJ Kirby QC did highlight that online courts could negatively impact on baby barristers in the first one to three years of their careers.
But the concerns are far more widespread than that. The Bar Council also points out that an online court system has the potential to erode the country’s strong adversarial roots in favour of an inquisitorial system, like those endorsed across Europe. This could lead to a striking shift in judicial function, and see one of the English legal system’s most basic pillars worn away.
Chantal-Aimée Doerries QC, chairman of the Bar Council, also pointed out that online litigants could “easily find themselves in litigation with big organisations who can afford to hire their own legal teams”.
Barristers are concerned that this David vs Goliath system of dispute resolution could promote a “two-tier justice system” — and this has undeniable implications from an access to justice point of view.
Photoshopped lead image via Smith Bernal Co Limited