ONLINE DISPUTE RESOLUTION – INSPIRED INNOVATION OR BUDGET (IN)JUSTICE?

This week, Shadow Justice Minister, Sadiq Khan MP, accused ministers of avoiding answering his parliamentary questions on the growth of unrepresented parties in court. He had been seeking, as long ago as October, information on how many cases involved unrepresented litigants in the last 4 years.

So far the Government has not answered.

No surprise there.

The number of unrepresented parties in court has soared, largely due to Government withdrawal of legal aid, and the increase in the small claims limit to £10,000. It’s no surprise they don’t want to answer difficult questions.

Meanwhile the Civil Justice Council recently recommended addressing the problem by replacing the Small Claims system (and in fact the system for all claims up to £25,000) with Online Dispute Resolution (ODR).

The title of the report is “Online Dispute Resolution for Low Value Civil Claims”.

According to the report, low value claims are those below a value of £25,000.

The Government’s own figure for the average annual wage is approximately £23,000*.

Leaving aside the fact that £25,000 is for many a life changing sum, and, according to the Government’s own figures, more than a year’s earnings, the CJC’s classification of low value claims suggests that either they have borrowed the classification from the Government**, or they are as out of touch as the Government, or both.

This could be a good thing (ODR, not the CJC being out of touch), provided it’s done properly. But then this proposal seeks to place the bulk of the legal process for money claims of up to £25,000 in the hands of software developers. There are now, and will always be situations that do not fit the box; if not, we wouldn’t have a precedent based legal system, and it’s difficult to see how software decision trees can be successfully applied to legal problems. Is the next step to be online self diagnosis? What if you tick the wrong box and end up with  diabetes instead of cancer?

It is all very well de-skilling the court process, and even judicial staff, but you can’t “de-skill” the law – no dumbing down of the legal process will change the law, nor its applicability.

Furthermore, the Government aren’t exactly known for their track record with successfully implementing new computer systems (amongst them, the NHS, Department of Transport, DVLA, DEFRA, NOMIS, MOD DII, Identity Cards and others).

The Government have been responsible for a dramatic reduction in access to justice – criminal legal aid, family legal aid, civil litigation, small claims, employment tribunals, to name but the headline acts.

All of these have served to narrow the scope of peoples’ rights and their access to legal redress. It is no surprise that this chiefly hits those of lesser means. So a cheap, efficient dispute resolution system is a good thing, provided people do not hemorrhage more of their legal rights in the process. Any system which cuts corners, sacrificing detail for cost cutting, risks producing the wrong decision. Even the Master of the Rolls thinks so.

Those with good cases could lose or not have their cases properly dealt with simply because the evidence was not presented properly. This has already been seen to happen with the Government’s solution to reducing the cost of running road traffic accident claims .

If done properly, this could work, but peoples’ rights are at stake, and another botch job for no reason other than to alleviate pressure on a beleaguered court system will not serve peoples’ interests well.

People will still need the opportunity to take their own professional advice and have their case prepared properly.

We await developments with cautious curiosity.

Thanks for reading, and if you enjoyed this post, please consider sharing it on G+

Dean V Talbot F.C.I.L.Ex.

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*”Households Below Average Income An analysis of the income distribution 1994/95 – 2012/13″
**Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims S 2.1, and Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents from 31 July 2013 S 1.2(1)a

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Legal representation is no longer a right (or is it…?)

Don’t take it from me – that’s what 87% of lawyers who were questioned, think: Furthermore, more than 79% of those lawyers surveyed believe that de-skilling is inevitable. Not great when the customer needs things done properly.

For those who don’t know, the English and Welsh legal system has been systematically pulled apart over the last 2 years and reconstructed. Well, partly reconstructed.

In short, criminal legal aid funding has been dramatically reduced, family legal aid has been more or less annihilated (except for some few exceptional cases), and civil litigation has been changed beyond recognition, making it harder for ordinary people to enforce their rights.

The most talked about area of civil litigation is injury. Whilst people who have suffered injuries at others’ hands now have a much harder job proving their case, and will no longer be able to keep all of their compensation, this article does not concern injuries, but in fact deals with one area which is often overlooked – small business and consumer claims.

Some examples:

• That repeat customer who refuses to pay his bills;

• That computer that packed up 1 month after you bought it;

• The new conservatory that sprang a leak;

• The car salesman who conveniently forgot to tell you that your car had a very expensive fault before you bought it.

Many people are not aware that the Small Claims Limit was raised last year from £5,000 to £10,000. That means that since April 2013, if you have a contract claim of up to £10,000 (including, but not exclusively, as above) you either pay to go to court yourself, or write it off.

I’ll say that again. You write it off.

Writing off a debt of up to £10,000 is a choice many people make, because if they hire a solicitor to help them, even if they win, they can’t recover their legal costs from the loser. So they could recover their (say) £9,000 debt, but may have paid (say) £3,000 – £4,000 to a solicitor to achieve that. What’s the point, especially when it can take 1-2 years to get there.

The logical outcome of such changes is easy to envisage – people who can’t afford solicitors either don’t take action or run their cases themselves. Many people need to consult a lawyer, but can’t afford to do so, and so don’t.

Many people on the other hand are brave enough to run cases themselves, and many get it wrong, because (surprise, surprise) the law is complex. Even the Master of the Rolls, who ushered in most of the plethora of changes in the law over the last two years, believes that winnable cases WILL be lost because people are running them without legal assistance.

The Court of Appeal not only agrees, but their frustration at having to explain the law to those who cannot afford a solicitor, is all too evident.

The good news is that there are now alternatives which will provide you with the expert legal help you need, at a fraction of the cost of a conventional solicitor’s practice.

Going back to the article at the top, the 87% are right. And wrong.

Government policy IS forcing the public further away from access to justice, BUT the market is adapting to respond to those changes. If you want to know more, you can contact me here.

Thanks for reading, and if you enjoyed this post, please consider sharing it on G+

Dean V Talbot F.C.I.L.Ex.

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