Reform marches on

While the government appeared not to know when it would be introducing the legislation needed for court reform, HM Courts and Tribunal Service (HMCTS) was pressing on with closing down courts and digitising court processes. Most of this was happening away from the public gaze because Dominic Raab, who was justice minister for the second half of 2017, had ordered HMCTS staff not to brief journalists. It was not clear at the time why he was so anxious to hide his flagship project from public scrutiny. It was even less clear why HMCTS, which is meant to operate at arm’s length from the Ministry of Justice, went along with it.

Professor Dame Hazel Genn, co-director of the UCL Judicial Institute and the UK’s leading socio-legal researcher, rightly said in October 2017 that “the lack of a clear flow of communication has been a cause of some complaint among the profession, the judiciary and academics”.1 She was “astonished” to find that the only regular source of information about the government’s £1bn court reform project in the second half of 2017 was an obscure blog called Inside HMCTS.2

HMCTS had become more willing to brief journalists by the summer of 2018. The information that follows originated in the blog and has subsequently been updated.

Online Divorce3 pilots began in January 2017 at the East Midlands divorce centre in Nottingham. Adam Lennon, who was in charge of the project, explained that the questions applicants were asked would depend on the answers they had already given.

For example, an applicant seeking a divorce based on a spouse’s behaviour would not be shown guidance or be asked questions relating to a divorce based on separation. “The service also has built-in validation to minimise the possible reasons for rejection,” he added. So the software would not allow an applicant who had been married for four years to seek a divorce based on five years’ separation.

“The project is working in an agile way, building the service bit-by-bit,” the manager added. “We’ve decided to launch a pilot of this early version of the divorce service now because we want to give people a simpler service as quickly as possible, rather than wait until the full online service is ready.”

But some of the problems identified during the pilot stage remained when the service went live in May 2018. One page of questions was clearly directed at applicants who had already identified themselves as husbands. They were asked to choose a reason for their divorce. One of the options was: “your wife has committed adultery with a man and you find it intolerable (unbearable) to live with them”.4

Nobody would be surprised if a husband found it intolerable to live with his wife and her lover. But that is not something the courts need to know. What the question was trying to find out was whether a wife had committed adultery and her husband found it intolerable to live with her.

A similar insistence on unnecessary gender-neutral language made it much harder to understand guidance that the system offered a husband who was seeking a divorce, with his wife’s agreement, after two years’ separation.

It says: “The court will ask your wife if they agree to a divorce. If they don’t agree, your application will be rejected and you’ll need to choose another reason.”5

Questioned about this use of language Susan Acland-Hood said6 that HMCTS was simply following the advice it had been given.

In an example of the tail wagging the dog, a new divorce application form7 was introduced in August 2017 for all applicants, the majority of whom were not then making applications online. The previous form was amended — under regulations8 approved by parliament — to align it with the online form being piloted. It has a much clearer question-and-answer format and includes guidance notes printed alongside the relevant questions. The £550 fee can be paid by phone.

Users still had to print out the new form (in triplicate) and post it off. But it can be filled in and saved on a computer. In the same way as an online form will not let users give two contradictory answers to the same question, the printed form will not allow two alternative boxes to be ticked. It largely side-steps the pitfalls of gender-neutral language.

There was concern among family lawyers9 that the printed form encouraged applicants to identify co-respondents unnecessarily. It does indeed invite them to identify the “person your partner [sic] committed adultery with”. But it then says that “people do not generally name the person their spouse [sic] committed adultery with”. And it warns applicants that if they do name a co-respondent then that person will normally become a party to the court case. “Your petition could be delayed if they do not respond,” it adds, “and it could cost you more money to resolve that issue.”

Speaking in April 2018, the Lord Chief Justice spoke warmly about the scheme.10 “Since the online divorce pilot started in July last year,” Lord Burnett of Maldon said, “roughly 1500 people have requested links to it. In the paper-based world, an uncontested divorce required an applicant to fill out a form and file it with the court and, in some cases, to be checked by a judge. 40% of those forms were rejected because they had not been completed properly. The new online process takes applicants 25 minutes to complete, compared to an hour for the paper forms. And because the online form is well designed, all but eliminating the scope for errors, the rejection rate has fallen to 0.5%. This has the potential to save significant amounts of HMCTS staff and judicial time.”

A Civil Money Claims11 pilot was launched in the summer of 2017 for litigants-in-person claiming less than £10,000. Clare Galloway, the service manager, explained that the pilot was “not intended to deliver the online court in its entirety”: that would take some time. “Rather, this is the exciting first step in our journey that will eventually deliver a new and improved civil money claims service.”

The reforms would be delivered in no fewer than 10 stages, she added. “A key principle of agile working is to break the overall project down in to a series of manageable releases so that we can design, build and deliver iteratively.”

Writing at the end of June 2017, though, she seemed unaware that the necessary legislation was in jeopardy.

“Work to establish a set of concise, litigant-in-person-friendly rules will be required to support all new online procedures,” she wrote. “The Ministry of Justice plans to introduce primary legislation to authorise the creation of a new Online Procedure Rules Committee for the purpose of making a new kind of procedure rules for selected classes of cases aimed at making litigation in courts and tribunals navigable for lay litigants as much as for lawyers and harnessing modern IT for that purpose. This will provide vital underpinning for the Civil Money Claims Project.”

David Young, senior project manager for the civil money claims project, said in October 2017 that the service was currently being tested in what’s called a private beta phase.12 “We’ll continue to refine the new service until we are satisfied that we have learnt as much as we can and at that point we’ll allow everyone access to the new service”. The public beta stage was planned for early in 2018.

“Over the coming weeks,” he added, “our priority is to release additional functionality into both services which include introducing the without-prejudice negotiation and settlement platform for litigants-in-person and evidence upload and exchange.”13

The online civil money claims service became available for general use in the week before Easter 2018, although no announcement was made until a few days later. “It was used 700 times in the first week, the lord chief justice said.14 “On Maundy Thursday, a claim was lodged on-line at 14.02 and had been paid by 16.00.”

Sir Terence Etherton told judges in April 2018 that the civil money claims service was now available to litigants-in-person and some legal representatives, although not yet all. “It so far deals with the making of claims and the response; the next stage, which is being developed, deals with the exchange of evidence.”

It was envisaged that there would be a need for case officers – referred to as “authorised staff” in the lapsed 2017 bill. Their role was currently being developed by a committee chaired by Mr Justice Birss.15

The Digital Probate Service began accepting online applications in October 2017.16 At first, it was available in the simplest cases: where only one executor was applying. Users were allowed to save an incomplete application and return to it when they had obtained missing information. They were able to pay probate fees online but they had to provide supporting documents in the traditional way.

Paul Downer, managing the probate project, said that applicants could use the new digital statement of truth. “This is a declaration made by the applicant that the information provided is true at the time of submission,” he explained. “It removes the current requirement to swear an oath, saving the applicant time and effort in travelling to a probate registry or solicitor’s office.”17

By far the most controversial of the announcements to appear on the HMCTS blog was a proposal to pilot flexible operating hours,18 “letting people have their cases heard outside the current traditional 10am to 4.30pm court day”.

In the past, one might have expected such news to be announced by the lord chancellor or one of his ministers on the Ministry of Justice website (or even in parliament, if it had been sitting). Instead, the plans were announced in a blog post by Susan Acland-Hood, chief executive of HMCTS, on 21 July 2017.

Different ways of working would be tested in six different courts from the autumn of 2017, she explained. Some magistrates’ courts would sit as early as 8am while others would finish as late as 8.30pm.

Susan Acland-Hood accepted that lawyers had different views about flexible court hours. It was all about money, the chief executive conceded. “Keeping expensive buildings empty before 10am and after 4.30pm, rather than having fewer, better-maintained buildings open for longer hours, has a real cost.”

But expecting lawyers to start much earlier or work much later has a cost for them too, particularly if they have child-care responsibilities. Within 10 days there were 68 responses on the website and almost all of those submitted by court users were critical. “As a disabled barrister with three children,” one wrote, “the suggestion that in order to meet the commitments of my practice I would have to be ready to start work over an hour away from my home at 8am or alternatively not finish until 7pm (I will be affected by the Manchester pilot) is devastating enough for me to consider leaving the Bar.” Child care was not normally available before 8am or after 6pm, she added.

“As for the suggestion that courts are empty before 10am and after 4.30pm,” a QC pointed out, “it’s obvious whoever wrote this has not seen a Crown Court robing room which is usually a hive of activity long before 10am.” Another added: “The only reason we advocates are not in the building before 9am and after 5.30pm is because security will not allow it.”

There was huge opposition to the project. In September 2017, HMCTS announced that the pilots would be postponed from the autumn of 2017 until February 2018, when a further announcement was expected.

It was not until November 2018 that the announcement finally came:19

The majority of the responses from the prospectus focused on pilots in the criminal courts and demonstrated concern about the suitability of flexible hours in criminal cases. The responses raised concerns about the impact of [these] sessions as proposed pilots, and whether they would result in cases running over into more days and causing additional stress and anxiety for victims, witnesses and defendants, and creating more work for an already stretched criminal justice system. Strong concerns were raised about there being a high likelihood of advocates being required in both early and late sessions, especially more junior barristers.

Respondents also argued that – if piloting in crime were to be done – it would be better coming after changes to improved scheduling and listing practices, rather than before or alongside such changes.

We have reviewed our proposals for the Magistrates’ Court and the Crown Court and we recognise that there are currently particular pressures and issues in the criminal jurisdiction. On that basis, we have decided to not proceed with pilots in the Magistrates’ and Crown Courts and to proceed only with pilots in the Civil and Family Courts.