A wholescale court digitisation programme was launched in 2016 with aims to modernise the justice system and provide a platform for a fair, proportionate and accessible avenue for dispute resolution.
The idea was to correct the previous over-reliance on post, email and telephone correspondence, which is often unreliable, has poor security and a negative environmental impact. Instead, online portals would form a one-stop shop for court litigation.
Some areas of law have been successfully overhauled in this way, such as in conveyancing and divorce proceedings. In most of civil justice, however, the reform programme effected very little change in its early years.
More recently, the programme has drastically changed the way that civil justice legal representatives handle court litigation, with these changes continuing to stretch along the claims journey.
While ACSO’s members aim to reach satisfactory outcomes on their cases without the need for judicial intervention, increasingly with alternative dispute resolution programmes, sometimes litigation is unavoidable.
One of the changes most relevant to our members is the introduction of the Damages Claims Portal or DCP, a system of mandatory use for many legally represented consumers’ damages claims that need to be issued to the County Court, which are the majority of personal injury cases. The DCP currently facilitates the issuing of court proceedings, service of those proceedings on third-party representatives, provision by the third party of their defence and all parties completing a questionnaire to suggest how the case should progress through proceedings. On fast track cases, the courts will also hand down a Standard Directions Order. It is at this point that the case falls outside the DCP and proceeds ‘on paper’, i.e. through the legacy service.
What does this mean for the claims process?
The DCP is already proving beneficial for consumers in that it allows for a near-instant issue of proceedings where previously they were dependant on the mail service and/or email inbox backlogs as well as, in many cases, saving many months between the issue of proceedings and receipt of directions from the court. In short, the DCP is speeding up the process for those cases where litigation is necessary.
It also provides peace of mind from data protection and environmental standpoints, reducing the risks associated with mail delivery and the need for paper. This helps with efficiency and can lead to a reduction in operational expenses and therefore consumer legal costs.
The current court systems, however, are in transition and there is an ongoing need for agility with processes and planning for court litigation.
Inevitably, there are issues that may arise from time to time with a system as new and complex as this. There have recently been examples of technical glitches with the DCP reported by our members, for example where proceedings were unexpectedly not issued for a few days or payment was not taken. These have all seen speedy resolution but are disconcerting when considering that the courts are to introduce a system allowing disclosure via the portal which is likely to take up bandwidth and server capacity.
The system is also inflexible when it comes to changing the details of a case after court proceedings have been brought, which very often leads to the case dropping from the DCP and falling back into the traditional, and often slower, court process. Court capacity to add functionality to the live service appears to be hamstrung by resources, as they aim to meet deadlines for a cradle-to-grave system.
Overall, ACSO is pleased to see progress with the digital reform programme, which is already boosting the speed of claims through litigation (at least for the initial phases of litigation, and predominantly in the fast track and the new intermediate track) but there is more to be done. The following is a list of things we would most like to see from the DCP in relation to the live service:
- A focus on stabilising and strengthening the systems behind the DCP in an effort to reduce the frequency of the technical glitches our members are seeing;
- Added functionality to allow a user to amend a claim form before the notification of the claim and claim details to the third party. This would vastly improve the number of claims that would remain on the DCP post-issue;
- A single online space for DCP updates, guidance, webinars and contact details to make stakeholder engagement easier for the courts and to provide confidence to legal representatives that they haven’t missed a notification of a technical update as it is distributed haphazardly through various communication channels;
- A commitment to adding new functionality more than four weeks after notification and demonstration of the new function to stakeholders, allowing users to be risk-prepared for these important changes to working processes; and
- Large-scale improvements to supervision functionality.
What’s next?
In theory, a full digital process should assist with better court data collection and publication for analysis, more detailed and less manual record keeping on the claim journey for each case, more accessibility options for vulnerable clients, connectivity between systems and further process streamlining and increased digital dexterity, allowing for greater innovation to tap into the new digital journey.
Because of this, we want to see fast progress with more cases staying in the DCP, which will require additional functionality for the live service, and for cases to stay in the process for longer, which will require the DCP being stretched further along the line of the claims journey towards trial.
In relation to the next phases of the DCP, the persistent aim of the Ministry of Justice is for the portal system to provide an ‘issue to trial’ capability by April 2024. In theory, this should help a claim to run more efficiently with the courts by circumventing some of the civil court delays that are so drastically impacting the speed of access to justice and should therefore help to reach a just and proportionate outcome quickly.
Inevitably, though, creating an online system that will effectively and efficiently facilitate many thousands of civil disputes is complex, and so we are pleased that our Legal Policy Advisor and Solicitor for Minster Law, Daniel Bates, is a part of the Advance User Testing Group for the next phases of the DCP. This helps us to provide feedback to the courts before implementation, we hope leading to a more rounded and effective roll out of the further phases, and to gain insight to help our members plan for any changes that will inevitably impact current and future cases. The group is currently assisting the courts to assess the development of functions to allow parties to exchange evidence, such as medical reports and witness statements, and for a court bundle to be prepared from that evidence.
Additionally, through our DCP Working Group, we continue to gather live feedback on the DCP and escalate with His Majesty’s Court and Tribunal Service, the Ministry of Justice, the Civil Procedure Rules Committee and the Online Procedure Rules Committee to help flag dysfunction in the live service and ensure that the core objectives of the digitisation programme are met.
Authors:
Daniel Bates, Serious Injury Solicitor and Legal Policy Advisor for ACSO
Amina Gokalia, Solicitor Apprentice and Secondee at ACSO