“The thinking, planning and actions of the Courts Service has developed five years in five months, as we embark on this three year Corporate Strategic Plan… now is the time for renaissance and not resistance.”
Frank Clarke, Chief Justice, 2020
Renaissance is a French word meaning ‘rebirth’. The Courts Service aims to do just that with the publication this week of its Strategic Plan 2021- 2023, a modernisation programme with a significant emphasis on digital transformation of its services. The Chief Justice highlighted that: “this is a time for renaissance not resistance.” Who would disagree in light of the significant disruption caused to the Courts system during the Covid-19 crisis despite the Trojan efforts of the Courts Service.
This short article takes a helicopter view of the strategic plan in light of the seismic shifts in the litigation and dispute resolution landscape since the onset of the pandemic, draws on examples from other jurisdictions and asserts that a Court transition to modernity can both improve access to justice but also help reduce legal costs for consumers.
Unquestionably, Covid-19 has seen the Courts Service take the first tentative steps towards the digitization of disputes. Professor Richard Susskind, the foremost authority in the field, predicted this shift online for the Courts prior to the current pandemic. Today, Susskind predicts that: “We are at the foothills of the transformation in court services.” Jurisdictions such as the UK, the U.S. and Singapore are leading the way in the adoption of legal technology. In the UK a survey of over 1,000 people found that broadly speaking, the lawyers and Court users were satisfied with their experiences of remote hearings during Covid-19 lock-downs. In Ireland, anecdotal evidence would suggest a similar positive experience. Yes there have been teething problems and much more work needs to be done to identify what types of cases or applications are best suited to technological hearing. However, it is a credit to the Courts Service that it moved swiftly to deliver 2,095 virtual hearings from April to December 2020.
The Courts Service report has 6 strategic goals, a number of which are worth highlighting. The report adopts a “digital first” objective, a commitment to reduce reliance on paper-based processes and instead use digital channels, taking account of human and equality rights of all users to ensure no one will be left behind when interacting with the Courts. Another welcome goal is that the new ways of working will adopt a “a user-centric approach” with “continuous improvement” and an “innovation culture” at the heart of the service offering. A national review of venues will be carried out and a priority action will see the development of a new specialist Family Law Courts in Dublin with enhanced facilities for Court users. Critically, the report seeks to make Ireland “a best-in-class provider of access to justice” in civil justice and family law. Moreover, the plan seeks to maximize the undoubted opportunities for Ireland in a post Brexit world in the field of international dispute resolution with Ireland becoming the only English-speaking common-law jurisdiction in the EU.
The primary benefits of a digital Courts system are twofold: access to justice, and a reduction in legal costs. Charles Dickens once referred to legal papers as “mountains of costly nonsense”. Access to lawyers and consequently justice can sometimes be open to the very few. Overall, the strategic report is a commendable roadmap to bring the Courts system into the digital transformation era. The plan will take into account the recent recommendations of former President of the High Court, Mr. Justice Peter Kelly, in his review of civil justice reforms. In essence, Court rules will have to be re-framed to embrace and accommodate digital transformation. The adoption of electronic signatures and the removal of archaic legal rules must form part of this initiative. ODR (online dispute resolution) such as negotiation, mediation, arbitration, conciliation, and expert determination all have the potential to support online Courts to ensure that the courtroom is left for those cases truly requiring judicial determination.
One concern perhaps for legal technologists is the time-lime outlined in the report. The report is the first phase of a 10-year long term strategic vision to fundamentally transform how the Courts Service delivers services to its various stakeholders. One wonders what new technologies will be available in 2031? However, we must not underestimate the size of the challenge. For example, 445,000 criminal and 233,000 civil matters came before the Courts in 2020. There are also significant other challenges such as funding, security, data protection, procurement, the environment, a national broadband network and upskilling and training of Court staff. As ever, the devil will be in the detail and implementation.
Technology and the internet are now interwoven into our everyday personal and business lives. The Courts system must adapt and meet this new challenge head on. The strategic report is a progressive first step to deliver access to justice for all litigants in the digital world we now live in. Admittedly, the pace of technological change in the past has been slow. Necessity is, of course, the mother of all invention. Covid-19 has proven to be the stimulus. History indicates that progress will likely be incremental rather than big-bang. As lawyers and litigators, we must embrace this transition and look forward to the renaissance.