Continued from page 2, “Visiting Law Lord backs technology, online courts” “I would like the profession to take part in discussions regarding the future shape of the system of criminal justice that we want,” she says. “I think we can imagine and plan for a system which both accommodates the pressures for cost saving and efficiency and prioritise the imperative to rehabilitate the offender.” But sometimes it’s difficult to see how cost can be argued as a factor. For example, Dame Helen cites a situation where a defendant being beamed into court via an AVL was sitting in the building next door, in the Christchurch police cells. New moves Meanwhile, Lord Thomas says work is being done in the UK on the prospect of offering online legal advice to help cut costs. Also being considered is the use of “intelligent” digital forms which can be used (with tweaks) across civil, family and administrative claims, and in social security appeals. Artificial intelligence (AI) might have a role in rudimentary tasks such as processing speeding offences and in helping produce pre-sentencing reports for the courts. Discovery and the review of documents for disclosure are rapidly becoming automated in the UK, Lord Thomas said. While big firms might have once used “Australian backpackers” as cheap labour to do this work, “that is very rapidly on its way out because machines have proved to be cheaper and much more accurate”. The bigger London firms are also using a program to review M & A (mergers and acquisitions) contracts. “They are finding it more accurate to look for nasties in contracts by running them through a machine because a machine will generally not miss a clause which someone having a cup of coffee late at night can easily do,” Lord Thomas says. Still under discussion is the prospect of moving all court files online, though a major obstacle is the issue of public access in a system where “anything that happens in the courts really ought to be

Still receiving

If you don’t give ordinary people a method of enforcing claims, or to complain about things that have gone wrong, or to deal with their rights, you are alienating them from the legal system and you are fundamentally undermining the rule of law transparent”. Public access is easily managed when courts are viewed as a “place” rather than as a “service”, he says. As an example, he cites China, which has spent “huge amounts of money” linking all its courts to a single database and putting all its court files online. The chief justice can sit in an office in Beijing and watch everything that happened in every other court in the country. A huge data set of 94.2 million cases and millions of pieces of other statistical data had been created but China had still not resolved the problem of public access. Dispute resolution Lord Burnett of Maldon, the current Lord Chief Justice of England and Wales, is urging the profession to remain open-minded and not to fear technology. In a speech at the First International Forum of Online Courts in December 2018, he said the law and justice system should “harness [technology] to provide a better and more efficient service to the public which at the same time improves justice…. “Technology will be our servant, not our master,

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and provides scope for our courts to resolve our disputes more quickly and less expensively.” He notes the “great strides” being made in the arena of online and digital courts in British Columbia, Canada. “It is not every generation that is called upon to question the fundamentals of their systems, of their ways of working,” he says, and justice cannot be immune from the implications of the digital revolution. When large numbers of people, particularly those on low incomes, had no effective access to the justice system, it could not take an ostrich approach. “We cannot ignore the complexity of too much of what we do or the trouble and expense associated with it for litigants. That is a complaint that has echoed down the ages. Yet the sensible use of technology may provide enduring solutions to these problems.” eBay, he said, resolves 60 million disputes every year and the courts should not be afraid of learning from its system. “It is quick, inexpensive and efficient.” The courts could also learn from the Financial Ombudsman Service which resolves hundreds of thousands of complaints every year. “We should remember that the overwhelming majority of civil claims are for small sums, important though they are to the litigants, and that litigants want and expect a swift and inexpensive answer. If the courts cannot provide that, alternative dispute resolution mechanisms will develop which can… “We need to be prepared for what might appear to be radical change…. There is no reason why our forms, processes and perhaps even some hearings should not be optimised for smartphones, giving litigants effective access to justice from the palm of their hand. “That facility is being developed in England and in Wales. There is no reason why our online court and justice systems cannot deliver effective and accessible justice direct to the citizen.”

THIS WEEK’S ARTICLES

Issue 36 11 Oct 2019

Online trials: coming soon to a court near you? P1

Trust Law: complying with the new beneficiary disclosure rules p3

ADLS profile: Chris Foote, Courthouse Liaison committee p5

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LAW AND THE COURTS

Visiting Law Lord backs technology, online courts By Jenni McManus

Technology and the move towards online courts are critical to making justice more affordable to “ordinary” people, says England’s former top judge, Lord Thomas of Cwmgiedd PC. Lord Thomas, a former Lord Chief Justice of England and Wales, is visiting New Zealand as part of the NZ Law Foundation’s Distinguished Visiting Fellow program.

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Investment in IT is “extraordinarily expensive”, he says, but the rule is law is at risk if ordinary individuals cannot enforce rights on issues that matter to them. “If you don’t give ordinary people a method of enforcing claims, or to complain about things that have gone wrong, or to deal with their rights, you are alienating them from the legal system and you are fundamentally undermining the rule of law,” he said.

Cost and conservatism are the biggest obstacles to online trials

The UK began a full-scale, £1 billion IT upgrade of its court systems in 2016. It’s the British government’s second attempt to digitise the courts, the first having gone badly off the rails in 1999-2000 when the initial stage of the project – rewiring the courts – blew out the budget. By 2016, the arrival of wifi had made the rewiring redundant.

We need to be prepared for what might appear to be radical change

But in spite of the cost, lawyers must pressure their government to invest in IT, Lord Thomas says. Big segments of the law, such as contract, are becoming commoditised and the Big Four accounting firms, with large resources to invest in technology, are rapidly moving into this space.

lawyers, Ernst & Young has 2200, PWC has 3600 and there are 1800 at KPMG.

In the past 10 years, the Big Four have moved well beyond their traditional audit and tax practices, rebranding themselves as consultants and setting up law firms. Both EY and PWC offer legal services in New Zealand. Worldwide, Deloitte employs 2400

Competition, particularly in high volume/low value legal work, is increasing, Lord Thomas says. Here in New Zealand, access to justice has been flagged as a major issue by both the Chief Justice, Dame Helen Winkelmann, and Attorney-General David Parker. At a recent ADLS breakfast in Auckland (LawNews 13 September) Parker said he viewed access to justice as a fairness issue, and part of the

government’s focus on wellbeing. The marginalised in society lacked a voice in both the criminal and civil courts, putting the rule of law at risk. “I want all New Zealanders to have faith in our justice system and to continue to regard the courts and tribunals as the legitimate and proper forums for determining civil and criminal liability,” he said. “But that is put at risk if the justice system is not accessible; the legitimacy of our institution of justice, the processes and laws applied through these institutions are at risk of being undermined if they don’t work for everyone.” To help deal with the issue, he wants to see a simplification of the District Court rules to encourage civil litigants to resolve their differences Continued on page 2