Since the law is seen as a formal mechanism of the creation and prolongation of social order,

the knowledge of the structure of justice system is of the essence, which the civil aspect of the
English Legal System will be the central focus of this study.1

Essentially, the central idea of civil law is concerned with the rights and properties of individuals
or organisations. Civil law involves a wide range of issues ranging from divorce to tortious
claims that are initiated by a citizen or body against another party. The aim of civil law is to seek
a remedy for the injured party in contrast to criminal law seeking to punish offenders with the
intent of maintaining societal stability.2

The English Civil Justice System has undergone extensive reforms since its inception in areas
such as: the granting of legal aid, civil procedure rules as well as the dispute resolution
mechanisms of Alternative Dispute Resolution (ADR) and its online equivalent, the Online
Dispute Resolution (ODR).3

As society becomes increasingly computerized and paperless, digital technologies have

developed into a crucial part of the everyday life of the masses, which gave rise to
opportunities in terms of productivity and efficiency in various sectors, including the legal
sector.4 Thus, it is of certainty that technology can revolutionise the area of dispute resolution
in the English Legal System in ways such as speeding up court processes and filing systems,
facilitating the communication of information instantaneously, supporting decision making with
programmed systems and so forth.5 The promise of a technological transformation to provide

1
Gary Slapper and David Kelly, ​The English Legal System​ (18th edn, Routledge 2017)
2
Slater and Gordon, ‘Criminal vs. Civil Law - Understanding the Differences’ (​Slater and Gordon UK Limited,​ 11 April
2018) <www.slatergordon.co.uk/media-centre/blog/2018/04/criminal-vs-civil-law-understanding-the-differences>
accessed 16 May 2019
3
Dr Christopher Hodges and Dr Magdalena Tulibacka, ‘Civil justice in England and Wales –beyond the courts’
(2009) Centre for Socio-Legal Studies University of Oxford Research Project,
<www.law.ox.ac.uk/sites/files/oxlaw/civil_justice_in_england_and_wales_-_beyond_courts._mapping_out_non-ju
dicial_civil_justice_mechanisms.pdf> accessed 16 May 2019
4
Tomi Dufva. and Mikko Dufva, ‘Grasping the future of the digital society’ (2018) ScienceDirect
<www.sciencedirect.com/science/article/pii/S0016328717302252> accessed 16 May 2019
5
​Professor Dame Hazel Genn ‘Birkenhead Lecture 2017: Online Courts and the Future of Justice’ (Gray’s Inn, 16
October 2017)
<www.ucl.ac.uk/laws/sites/laws/files/birkenhead_lecture_2017_professor_dame_hazel_genn_final_version.pdf>
accessed 19 May 2019
access for parties to a single system of civil cases can be observed in the Civil Court Structure
Review (CCSR) by Lord Justice Briggs.6

The CCSR is a report which was commissioned by the Lord Chief Justice and the Master of the
Rolls in 2015 to review the structure of the civil courts and suggest recommendations for
structural changes. The report which contained 62 recommendations was lead by Lord Justice
Briggs and is likely to form part of the ongoing Her Majesty’s Courts and Tribunals Service
Reform Programme that aims to increase accessibility, efficacy and efficiency of the justice
system.7 The primary recommendation of the report was on the proposal of the“Online Court.”

The Online Court is seen as a form of Online Dispute Resolution (ODR), which ODR is often
referred as a form of ADR that takes advantage of the convenience and speed offered by the
internet.8 ODR is often seen as the best platform for enhancing the redress of consumer
grievances while also simultaneously promoting the growth of e-commerce. Despite the
growing need of ODR, its growth has been slow in comparison to ADR methods due to the
reality of a limited number of successful ODR providers.9 An example of successful ODR
provider is eBay, who has resolved around 60 million disputes amongst traders through means
of their dispute resolution provider called SquareTrade.10

The Online Court is seen as a platform to justly resolve disputes of moderate value and
complexity without incurring the excessive cost of legal representation through the help of
modern IT.11 The report proposed that the Online Courts will eventually become the mandatory
forum for resolving money claims valued up to £25000 by the year 2020, with more complex

6
Ibid
7
John Fitzsimons, ‘The Briggs Report on the Civil Courts Structure: Implications for Housing Law Practitioners’
(​Cornerstone Barristers,​ February 2017)
<https://cornerstonebarristers.com/cmsAdmin/uploads/the-briggs-report-on-the-civil-courts-structure.pdf>
accessed 19 May 2019
8
Dr Pablo Cortes, ‘What should the ideal ODR system for e-commerce look like? The Hidden World of Consumer
ADR: Redress and Behaviour’ (​Centre for Socio-Legal Studies Oxford,​ 28 October 2011)
<www.law.ox.ac.uk/sites/files/oxlaw/dr_pablo_cortes.pdf> accessed 20 May 2019
9
Ibid
10
Owen Bowcott, ‘Online court proposed to resolve claims of up to £25,000’ ​The Guardian​ (London, 16 February
2015) <www.theguardian.com/law/2015/feb/16/online-court-proposed-to-resolve-claims-of-up-to-25000>
accessed 25 May 2019
11
Briggs LJ, ​Civil Court Structure Review: Interim Report​ (Judiciary of England and Wales, 2015)
and important cases being transferred upwards to higher courts.12 Although novel aspects of
the Online Courts have been in operation in other countries for quite some time but the
concept of an online court to England and Wales is still considered as relatively new; having
existed in the English public domain for less than a year as the concept first emerged in a report
titled “Online Dispute Resolution for Low Value Civil Claims” that was published by the Civil
Justice Council’s ODR Advisory Group in February 2015.

The cases that goes through the Online Court would go through a three stage structure, for
which the first stage is an automated “triage” process that will require the potential litigants to
upload documents or evidence that are necessary for the courts which allows litigants without
lawyers to articulate their case. The next stage will involve a combination of case management
and conciliation by case officers that are conducted partly online or partly through telephone
but not face-to-face. The third stage will be composed of a resolution or determination by
judges using methods such as documents, face-to-face or by video as deemed appropriate.13
Initially, the use of lawyers were not included in the design of the Online Court, however, Lord
Justice Briggs said that it is not the objective of the Online Court to exclude lawyers and
encourage Mckenzie friends; in other words, lawyers will not be completely excluded from the
process.14 The fundamental rationale of the new court as explained by Lord Justice Briggs is that
while the traditional courts are truly accessible and understood by lawyers, the Online Court
should as far as possible be equally accessible to both lawyers and litigants.

The proposal of the Online Court had been subjected to mixed reactions ranging from “straight
condemnation to the warmest of welcome.”15 For instance, Professor Richard Susskind is one of
the leading advocates of an Online Court who had been quoted as saying that “I am the
happiest man in England” while Lord Neuberger had a sceptical reaction, who described the
online justice as “quick and dirty, but better than no justice.” However, although the Bar

12
Ashfords, ‘Civil Courts Structure Review (CSSR): Final Report From Lord Justice Briggs’ (​Ashfords LLP,​ 9 September
2016)
<www.ashfords.co.uk/news-and-events/general/civil-courts-structure-review-ccsr-final-report-from-lord-justice-br
iggs> accessed 19 May 2019
13
Briggs LJ, Civil Courts Structure Review: Final Report (Judiciary of England and Wales, 2016)
14
Hazel (n5)
15
​Briggs (n 12)
Council had been an advocate of court modernisation, they had also been an vocal opposition
to the implementation of Online Court by stating that “there is a real risk of entrenching a
two-tier justice system” while quoting the inequality of arms between organisations with legal
representation and litigation-in-persons (LiPs).16

The essence of the criticism of the Online Court remains at the perception that the Online Court
will bring forth second-class justice to claims incorrectly viewed as less important as compared
to the current traditional civil justice structure. The Online Court is viewed as inferior to the
traditional model due to the main reason that contact with litigants are made by case officers
instead of judges and that the Online Court’s reluctance in using face-to-face trials could lead to
a reduction in the judicial ability to arrive at informed judgements. Thus, the absence of
traditional litigation could be seen as bearing the risk of being perceived as a “degradation of
justice,” therefore undermining the court’s legitimacy and authority. This is due to the
problems that conducting trials without the actual presence of the parties such as taking
testimonies by phone can give rise to problems in validating the identity of the speaker as well
as problems preventing undue influence and fraud. This raises the argument of which trial
method would be more conducive to the truth, speaking in a public courtroom, or speaking
through the phone from the security of home.

The concerns above are not strictly limited to testimonies by phone only but is also applicable
to testimonials by video. While video conferences does indeed provide more information than
phone calls because now the party could be seen by the judge, such testimonies are still
vulnerable to biases contributed by factors such as the angle, amount of eye-contact,
equipment quality and the visible surroundings.17

Another disadvantage of the Online Court is that it is seen as a “rash step into the dark” due to
the fact that the concept of an online court is relatively new and there is currently no
comparable precedent of an existing and operating online court that can provide the minimum

16
Peter Jackson, ‘Insight: Rise of the robots: the move towards an online court’ (​LawWorks,​ 2 August 2017)
<www.lawworks.org.uk/search/node/insight> accessed 21 May 2019
17
​Rabeea Assy, ‘Briggs’s Online Court and the Need for a Paradigm Shift’ (2017) 36(1) Civil Justice Quarterly
<www.academia.edu/31461685/Briggss_Online_Court_and_the_Need_for_a_Paradigm_Shift> accessed 21 May
2019
requisite level of confidence in the merits of an online court; although the nearest precedent in
other jurisdictions would be the British Columbia Civil Resolution Tribunal (CRT), which is
Canada’s first online tribunal.18

Since not all court users are tech savvy or computer-literate, this will pose as a threat to the
accessibility of the Online Court as this category of court users will be denied access to justice
due to problems such as the requirement to go online or the various difficulties of dealing with
computers. This is especially prevalent in the vulnerable and elderly group of court users as well
as the large number of population still living in rural areas with no access to the internet or
access to consumer electronics such as computers or smartphones due to reasons of
unaffordability or unavailability.

The design of the software of the Online Court will also pose as a disadvantage. As previously
mentioned, the first stage within the three stage structure is an automated process which will
require a “triage” software in order to assist unaided litigants with the presentation of their
cases in a clear and effective manner. The software would then be expected to perform this
task by guiding parties through a specific questionnaire prepared in advance that are tailored to
the different types of cases. The efficacy in the software to provide accessibility to the courts
for unaided litigants would greatly depend on the software developer’s imaginative ability to
generate the broadest range of scenarios in order to develop a questionnaire sufficiently
detailed enough to address the wide range of civil disputes.19 Since there is a limit to the human
imagination in anticipating all the possible scenarios due to the fact that life is too dynamic and
diverse to be captured, thus there will be inherent shortcomings of the software.20 An example
of the shortcomings resulting from the failure to predict every or even a sufficient range of
possible scenarios include parties failing to obtain the remedy if their case did not fit that
specific form.

Other disadvantages of the Online Court also include exposing parties to both paid Mckenzie
Friends as well as unqualified advisors. Incompetent and inadequate IT procurement as well as

18
Briggs (n19)
19
Rabeea (n21)
20
Ibid
underfunding on the part of the government can also pose as an obstacle to the success of the
digitalisation of the civil courts, which an example of this would be the successive failures to
digitise the court processes before the successful implementation of an electronic filing and
case management system in the Rolls Building called CE File.

On the other hand, there are several advantages an online court would offer in regards to the
settlement of civil disputes, such as increasing accessibility of the courts by providing ease of
access to parties in terms of transportation because an online court can remove the need to
travel to courts. Since parties do not have to travel long distances to attend court hearings and
that transmission of documents in the Online Court is through electronic means, this is said to
have reduce the expenditure of travel cost of the parties.

Another advantage of the Online Court include significant cost savings when compared to the
costly nature of traditional litigation. Sometimes, ODR maybe the only feasible option as some
are unable to bear the time, cost and energy expenditure of travelling. On another note, the
greatest expense in traditional litigation is the cost of lawyer fees. Parties may sharply reduce
expenditure in the Online Court as hiring a lawyer is often unnecessary.21 Thus the Online Court
can be seen as a tool for expanding the reach of the justice system to traditionally
disadvantaged groups of litigants.

Furthermore, the introduction of an online court can encourage the number of young court
users due to their computer literacy and general preference over using online communication
compared to paper. It also directly addresses the issue of many litigant-in-persons with
communication difficulties and psychological disorders facing the problem of being tongue-tied
when required to address the court while an online court will diminish the tense environment
usually associated with traditional courts and the need to speak before the public in open
courts.22

21
Joseph Goodman, ‘The Pros and Cons of Online Dispute Resolution: An Assessment of Cyber-Mediation
Websites’ 2003 Duke L & Tech Rev Vol 2 Issue 1
<https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1073&context=dltr> accessed 25 May 2019
22
Briggs (n19)
As previously mentioned, one of the main criticisms of the Online Court was the view that it
only provides “second-class justice,” which is implied to be in comparison with “first-class
justice.” The aforementioned “first-class justice”is referring to the traditional litigation where
lawyers are engaged on both sides. However, in reality, due to the increasing costs of litigation
and the withdrawal of legal aid, such “first-class justice” is rarely available to the common man
and the so called “best path to justice” are often taken by wealthy litigants.23 This will deter the
middle classes from litigation, which they will often prefer to settle for less than what they
deserve and relinquish their rights. This signifies that the class of court users are becoming
more smaller and access to justice is increasingly limited to litigants that are more financially
secure. As the access to justice is one of the fundamental principles of the rule of law, limiting
the access of justice to only the wealthy can break down the rule of law, thus threatening the
peace, stability and democracy of the country. Although the critics had named the Online Court
as a provider of “second-class justice,” but if one were to choose between between an
“inaccessible” first-class justice and “accessible” second-class justice, to choose the latter would
be the most optimal decision.

Another advantage of the Online Court includes an easier division of labour for judges dealing
with online cases because an online mechanism allows conflicts to be resolved in a more
speedy and efficient manner. Promoting efficiency is seen as promoting justice and accessibility
of the legal system as it involves easing the utilization of courts for the layman while also
preventing delay in the process.

In comparison to the Online Court, the advantages of traditional litigation include the
availability of legal aid or public funding for individuals since legal aid is not available for
individuals using ADR or the Online Court as a method of resolution. Therefore, parties using
traditional litigation may gain an advantage from the beginning as legal aid helps parties bear
the burden of legal costs.24 However, although Lord Justice Briggs mentioned in his final report
that there is nothing he can do or recommend despite the generous provision of legal aid, but

23
Rabeea (n21)
24
Raja Singham and Kevindran Arasu, ​Learning English Legal System​ (first published 2011, Brickfields Asia College)
74
he had modified stage 1 of the three stage structure of the Online Court in order to provide free
information and sources of legal advice.25

Another advantage which traditional litigation offers is transparency as non-litigation methods

generally takes place in a private setting as opposed to traditional litigation which is held in an
open courtroom before the public.26 This is advantageous to the parties because of the high
level of transparency within the disclosure of documents in proceedings and that previous
decisions are publicly accessible. This is a stark contrast to the view that the Online Court serves
as a threat to the loss of open justice and transparency, although there are increasing efforts to
instill transparency within the online process such as the installation of booths within the Rolls
Building to access digitised civil case files.

Furthermore, if a party wanted a test case to set precedent for future cases involving the same
area of law, litigation will be the best choice of dispute resolution as it provides a lasting benefit
in the form of precedent. This is advantageous in the sense that if parties found that the same
spurious claim is made against them, they can just point to previous decisions in similar cases
and use that precedent to reinforce their argument. Since parties do not have to start their
cases from scratch when a similar claim is made against them, litigation is essentially offering a
speedier dispute resolution.27

In contrast, one of the main gist of the disadvantages of litigation is its lengthy and time
consuming nature. Due to the sheer volume of cases heard before the court, this has formed
part of the backlog of cases that the English courts are burdened with. This meant that court
proceedings are often time-consuming and very slow, which can kept individuals waiting for
several months or years just to have their case heard before a judge or a resolution provided.
The duration of proceedings would increased further for an individual is unhappy with the

25
Masood Ahmed and Claire Pennells, ‘Online courts take the stage’ (2017) vol 7746 New Law Journal
<www.newlawjournal.co.uk/content/online-courts-take-stage> accessed 25 May 2019
26
Barbara Kate Repa, ‘Arbitration Pros and Cons’ (​NOLO​)
<www.nolo.com/legal-encyclopedia/arbitration-pros-cons-29807.html> accessed 25 May 2019
27
Etluk, ‘7 Advantages Of Litigation In Dispute Resolution’ (​ETL Global UK​, 7 May 2019)
<www.etl-uk.com/7-advantages-of-litigation-in-dispute-resolution/> accessed 25 May 2019
decision and would like to appeal against that decision, for which the unpredictable time
element of litigation can severely restrict the access of justice.

The element of cost is another disadvantage of litigation as the cost of litigation is not only
contributed by the “compressed schedule for the completion of discovery and trial," but is also
inclusive of the cost of lawyers, court fees and expert witness reports.28 Businesses have said
that using non-litigation methods has helped them saved several thousands of pounds in their
cost as the potential litigation cost of a typical major commercial dispute typically would cost
up £100,000 to £1 million while the cost of a mediator is about £1000 to £1500 per day.29 This
also raises the issue of the equality of rich and poor litigants, as the latter would often be
unable to pursue their course of action. Moreover, the adversarial nature of litigation remains
an element that concerns and complicates many lay people who are unfamiliar with the legal
system as well as the process of pursuing a course of action.30

Other disadvantages of litigation include its formal and rigid nature since court proceedings
adheres to strict rules of precedent and is controlled by statutory and procedural rules, which
contributes to its inability to respond more flexibly to cases. Furthermore, the rigidity of
litigation is disadvantageous as parties in litigation do not assume control in aspects such as the
time and place of the hearing.

In conclusion, the proposal of the Online Court is seen as the first step towards adapting to the
innovative reality of the Internet Age that eases the division of labour for judges, introduces
significant cost savings for parties as well as provides access to justice for the disadvantaged.
On the other hand, traditional litigation may triumph in aspects such as the availability of legal
aid and transparency. Although the idea of an online court does raise a lot of concerns and
questions; the bottom line is we are still uncertain of what the future holds for us in terms of

28
Tucker Arensberg Attorneys, ‘The Advantages and Disadvantages of Arbitration vs. Court Litigation’ (Tucker
Arensberg Attorneys, 13 February 2015)
<www.tuckerlaw.com/2015/02/13/advantages-disadvantages-arbitration-vs-court-litigation/>
29
​ Jacqueline Martin, Tim Wilshire and Jayne Fry, ​Cambridge International AS and A Level Law​ (Hodder Education
2017)
30
Emily Townsend, ‘Alternative Dispute Resolution vs Litigation’ (​The Student Lawyer​, 23 October 2013)
<http://thestudentlawyer.com/2013/10/23/alternative-dispute-resolution-vs-litigation-which-one-would-you-cho
ose/> accessed 26 May 2019
technological changes and that this concept should be adopted as an experimental study first in
order to address and discover its deficiencies. The trailblazing of such legal model should be
carried out in a cautious manner in order to accomodate the existing legal system and to
effectively achieve its aim of increasing the accessibility of justice.31 Since the aim of the Online
Court is to make all legal services accessible, it is essentially ensuring the smooth operation of
the rule of law as the access of justice is one of the fundamental principles of the rule of law.
(3098 Words)

31
Doron Menashe, ‘A Critical Analysis Of The Online Court’ (2018) University of Pennsylvania Journal of
International L Vol 39 Iss 4 <https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1967&context=jil>
accessed 26 May 2019
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Briggs LJ, ​Civil Court Structure Review: Interim Report​ (Judiciary of England and Wales, 2015)

Briggs LJ, ​Civil Courts Structure Review: Final Report ​(Judiciary of England and Wales, 2016)

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