AIPPI Event Report: Lord Justice Birss looks to the future of civil justice

The AmeriKat enjoying her fully
remote existence...

Last week, the UK Group hosted the latest in their remote series of events with Lord Justice Birss looking to the future of civil justice.  The AmeriKat was elsewhere in the remote universe, but was lucky to have guest Kat, Anna Duch (Bristows) on hand to report on the event for her and all the other readers who may have missed the session.  Take it away, Anna:  

"Last week, AIPPI UK hosted an event where Lord Justice Birss addressed the audience on “The Future of Civil Justice”. Spoiler alert: it is online, it is automated and it is already happening! Birss LJ shared a vision of a judicial process where cases are started, managed and, for the most part resolved online. A process that is aided by artificial intelligence, and which incorporates alternative dispute resolution. This guest Kat watched and listened with interest and did not even blink when a dog passed by. 

Digital transformation 

Before Covid, the courts in England and Wales, like in many other jurisdictions, were already moving online. Many civil suits, including almost all IP suits, could be filed online and the court maintained digital case files. Decisions were made either without a hearing or in the physical presence of the parties and their lawyers. In both cases, a lot of paper was used in the process. The pandemic strengthened the trend towards digitisation with hearings conducted mostly via video conferences and widespread use of digital files. The trend continues.

Next level of case management

Birss LJ provided an overview of the developments that we will see implemented in the courts of England and Wales in the next three to five years. Every civil case will be started, managed and concluded online. The digitally disadvantaged will be provided support to enable them to file their claims online rather than, as it is now, permitted to file documents at court on paper. There will be a single online point of entry for people to bring any kind of court action. The system will then direct each claim to the appropriate venue, like in a funnel. Small money claims will be funnelled to one part of the system and big patent cases to another. It will sit at the front of the courts and tribunals’ IT systems. It will interact with individual users as well as law firms’ case management systems via application programming interfaces (APIs).

Lord Birss pointed that APIs of this kind already exist and are used, for instance, in bulk issue of debt claims. Another example of such API is a chronology function built into the system used by the small claims court. The function generates a timeline of events in the case based on information submitted by the parties. Since its implementation, the function greatly improved clarity of cases. Such a system could be implemented more widely and could be improved so that the information is pulled directly from the case documents.

Change management and sentiment for paper

Leading transformation comes with its challenges. One such challenge is that many in the English courts, including some judges for whom law school is more of a distant memory, are attached to the system based on paper. This is because it works for them. A paper-based system can sometimes be very efficient. In the current system, judges can give standard case management practice directions by ticking boxes on a sheet of paper. The rest of the process, i.e. typing up the order and posting it to the parties, is currently done by the court staff. This is, in its own way, very efficient. The new online system may be faster and require less resources overall but it will require some extra effort and adjustment from the judges.

End of non-compliance with CPR

Procedural civil justice in the UK is governed by the Civil procedure Rules (CPR), with which parties routinely do not comply. This new system will be designed to make it impossible for the parties not to comply with the rules. Birss J provided an example of how this will work that already exists today.

In the paper-based world in a county court case, the parties are required to provide the court with information necessary for the court, to give case management directions within 14 days of the case being defended. The information is to be submitted using a directions questionnaire. They parties routinely fail to do it and court resources are put into making peremptory orders. In small money claims, the system design makes it impossible to submit or defend a claim without answering those questions - hence the non-compliance problem has vanished.

The new system is going to monitor the parties’ compliance with the case timetable and instigate action if one of the parties misses a deadline. The action may be automatic, or a judge or another member of the court staff may be prompted to look at the case file. In the High Court, for instance, it is unusual for the court to take action if a case deadline has been missed – monitoring case files is simply too resource-intensive.

Remote trials – the way forward

Most trials will be conducted, at least partly, by video conferencing. The judges and advocates may attend the courtroom with other lawyers, clients and witnesses attending remotely. The ability to access trials remotely has benefited open justice and widened access to justice, especially for those based in other jurisdictions. It has also been much to this guest Kat’s delight as she prefers long naps on the sofa to long train journeys.

Rise of alternative dispute resolution

In the future, ADR will play a greater role in the civil justice system. It will be fully integrated into the judicial process from start to finish. Birss LJ envisages that as cases progress, they will be moved back and forth between the ADR and the court system and different issues will be decided by the most appropriate method. Such a solution is already in place for whiplash claims. The system was designed to facilitate resolution of the claim without going to court. It enables the court to decide a single issue, such us liability, then the case to come out of the court system into the ADR system to settle another issue, such as quantum.

Lord Justice Birss noted the emergence of privately funded dispute resolution systems. eBay’s built-in dispute resolution, which handles an impressive 60 million cases per year, is a popular example. In his opinion such systems will play a bigger role in civil justice in the future with the courts having a regulatory role. As Birss LJ explained “the referee doesn’t need to go to a football stadium but they do have to regulate how the football matches are conducted within it.”

The future is already here…

Regarding the current state of affairs, Birss LJ quoted cyberpunk science fiction author William Gibson:

“The future is already here – it’s just not very evenly distributed.“. Some of the building blocks of this new system are already here, and others are being created as we speak. Different solutions have been implemented in different parts of the civil justice system in England and Wales. The next step will be ensuring that all these blocks work together and are implemented across England and Wales. County Courts will be the first to undergo the transformation.

Artificial intelligence – is the sky really the limit?

Looking further into the future, Lord Justice Birss predicts the use of artificial intelligence (AI), particularly machine learning and natural language processing, to analyse case data to aid the judicial process. In the future, AI will monitor the case file and choose an appropriate moment to make a suggestion to a litigant to take action and what action they may want to take with an overarching objective of maximising the likelihood of the parties settling.

Will AI replace human judges? 

Birss LJ believes that it won’t happen anytime soon. A machine learning based system can produce an outcome in a case but it can’t be trusted to produce a just outcome. A major objection to the AI systems is a hidden bias in the training data. But what about a human bias? What is more acceptable – an IT system, for which the training data is available and open to scrutiny or a human system for whom the “training data” is opaque? Birss LJ noted the existence of an old adage, of which most, this guest Kat included, are aware, that a hungry judge before lunch may make a different decision from a well-fed judge after lunch. This guest Kat does not think this could possibly be true.

As Birss LJ pointed out, judges not only provide outcomes but they also provide reasons for these outcomes. It is of course possible, that in time AI will be able to do just that. There is, however, one thing AI cannot do. The role of the civil justice system is to provide justice and an important part of it is that the losing party feels that it has been heard.

Will the legal profession become obsolete? 

Birss LJ believes it is possible that AI will eat some lawyers’ lunches as simple cases will cease to exist when unrepresented litigants will be able to access the court directly online, fill in a form and the pleadings will be generated automatically. However, it will not abolish the need for legal representation and quality legal advice. This is because when it comes to justice, the process matters as much as the result. The fact that something can be done by a technical process doesn’t mean that it should be done that way. We are still a very long way from a court system run entirely by computers.

Call for action

Lord Justice Birss concluded with a call for action to engage in the debate about the future of civil justice and influence the decisions that will impact on our future. The future of civil justice is being decided now!"