CHAPTER - VIII

JUDICIAL ADMINISTRATION OF E-GOVERNANCE

This chapter starts with discussion about e-Courts in India and the process of
Documentation, Identity of persons and signatures, Administration of Legal notices and
summons through electronic medium. Usage of e-mail in court proceedings, ADR-ODR,
e-Chat and Video Conferencing of witnesses has been discussed.

e-Courts in India

Delay in the judicial process has always been the bane of Indian Judicial system.
While the ostensible reason for delay in most cases is to provide more time for justice to
be brought forth through collection of evidences, in practice, the delays often work at
killing the available evidences.

Over a period of time, the accumulated cases in the courts have grown so much
that the Judges have to spend a large part of their time just in finding dates for
adjournments. The lawyers themselves have developed a vested interest in the
adjournments since it keeps them artificially employed over a longer time. In the process,
honest litigants feel harassed and dishonest litigants encash the benefits of the delay.

Most evidences are destroyed by the time they are taken up for scrutiny as
witnesses forget the events and make mistakes. The only beneficiary of this system is the
criminal who can dodge the law for as long as he wishes. This is where, E-courts come
in. Models of E-court of Singapore had been the inspiring factor for many a states in
India.

To speed up the justice delivery system, the Centre has embarked on a pilot
project for mass computerization and networking of the subordinate courts in the four
metros of Delhi, Mumbai, Chennai and Kolkata at an estimated cost of Rs. 14.91 crores.

The project of computerization and networking of city courts in the four major
metros, Delhi, Chennai, Kolkata and Mumbai will have the facility for filing of

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complaints to courts through e-mail by payment of court fees and stamp duty by credit
card.

In Delhi, the project is already completed and in the other three metros it is likely
to be completed during 2003. The computerization and networking of courts in the four
metros will serve as a model for use of information technology in courts in the rest of the
country. The project, when operational, will help expedite disposal of cases in the metro
courts.

According to the sources from Law Ministry, Rs. 8.53 crores was allocated for
this scheme during 2001-2002 and during 2002-2003, Rs. 4.98 crores was released for
Delhi and Rs. 2.61 crores for Mumbai as the project was in an advanced stage in the two
cities.

With regard to Chennai, the Project Monitoring Committee had met twice in
Chennai during January for speeding up of the computerization work as was being done
in Mumbai and Delhi.

Regarding Kolkata, the State Government has been persuaded at the highest level
to implement the project at the earliest as not much headway has been made here. In the
Northern State of Bihar, jails are being electronically connected with courts for trials. In
Karnataka, all subordinate courts had been computerized and linked to the High court.

Under the proposed scheme, computers in the courts of the four cities would be
networked and these courts would become models of modern computerized courts. This
scheme will be gradually extended to other cities to cover all the 13,000 subordinate
courts in the country. The Centre feels that district and subordinate courts which provide
direct contact points for citizens are computerized fully for efficient judicial functioning
and speedy disposal of cases.

The project envisages installation of one computer each in the courtroom and in
the chamber of judges and their networking and linkages with a central enquiry and

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facilitation centre. Parties would be able to file their complaints and petitions and also
make enquiries about pending cases at these centres.

The centres will furnish relevant information to the litigants and lawyers. They
will be informed of the defects in the complaints/petitions, if any, without the need to
access individual courts and asked to rectify them within two weeks.

Thereafter, the case will be given a registration number and allocated to a

judge/magistrate according to the work distribution already fed into the computer and a
date for appearance of parties would be given.

e-Courts, the Electronic Mode of Filing

The e-courts facilitate the filing of applications and even arguments through the
electronic mode. e-courts enable filing of Electronic FIRs, Petitions, Affidavits etc.
supported by a digital certificate as the basis of identification.

e-Court aims at speeding up the search and retrieval of data in criminal trials by
using multi-media databases through inter-and intranet. E-courts enables to deliver orders
by hearing arguments through video-conferencing.

One particular benefit of the e-Court system is that it has a "public user" facility.
If a Council chooses to become a public user, the Court on the Council will electronically
serve all new applications to the Court where that Council is a respondent. E-Court offers
a high level of security and only parties can access e-Court matters.

e-Justice: with reference to India

In this electronic age, delays can be prevented and peoples’ desire for efficient
and quicker justice for their problems can be satisfied. Governments, across the globe, are
strategically planning to use the Information Technology in the Justice delivery
mechanism by equipping themselves with a number of tools designed for the purpose.
Jawad Hassan, an attorney of Hassan and Hassan Estates “Technology should no doubt

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be utilized to administer quick and transparent justice for after all justice delayed is
justice denied. The bar and bench at all levels need to adopt an open-minded approach
towards the use of scientific tools in the legal system. However, the interests of justice
will not be served by just adopting them, but also requires steps to be taken to make the
public at large aware of their working”1In US, UK and Singapore, “Quick Court Kiosks”2
are used which are similar to ATM machines to assist the citizens. These kiosks provide
solutions to the clients for their problems, in the form of questions and answers and
suggesting a set of documents and instructions, actions on the related matters. In
Michigan (USA), ‘Great Lakes Free Net: Judges Forum’ facilitates the sharing of
information between the judges confidentially. The New Jersey Law Journal states that
the Southern District of New York announced a plan to phase in electronic filing’3.

In India also, the need is aptly recognized to cut short the delays in the justice
delivery mechanism. A revolutionary change is also taking place in parliamentary
transactions by making available the activities of the parliament through live
broadcasting. The existing laws are being amended to recognize transactions that have
taken place through electronic media and to accept the electronic records as evidences.
The CPC (Amendment) Act, 1999 (46 of 1999) which came into effect from July 01,
2002 has brought some of the changes into the Civil Procedure Code like summons
through courier, Fax and e-mail are the new concepts emerged. For filing the Written
Statement 30 days from the date of notice or in total it may not exceed 90 days. If the
defendant does not file the same, the presiding officer can decide the matter and can
pronounce the verdict. No second appeal in case of money suits value less than Rs. 25000
no further appeal in the High Court if Single Judge in Original Suit decides it. U/s 89 of
CPC setting the matters through alternative dispute resolution methods such as
Arbitration, Mediation, Conciliation and Lok Adalats are few to mention. These changes
facilitate the use of electronic media into the legal system. Order 5, Rule 21 and 24 are
amended to include the ‘Fax and Electronic Mail Services’ as modes of serving summons

1
Jawad Hassan, ‘Towards an E-Legal System---www.jang.comp.pk---October 06, 2002
2
Ibid
3
Charles Tutant, ‘Federal Courts in New Jerseys More Towards ‘e’ Filing---December 02, 2002,
www.law.com ---December 20, 2002.

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to defendants residing within the jurisdictions of another court to the defendants residing
in the prisons, Rule 14 of Order 18 is amended to facilitate the recording of media. The
amendments to CPC are made with an intention to avert delays in the justice delivery
mechanism. The Supreme Court of India has upheld the constitutional validity of the
amendments to Civil Procedure Code (CPC) and allowed recording of evidence through
audio and video techniques. The Supreme Court also upholds the amendments made to
the CPC in other case-Salem Advocate Bar Association, Tamilnadu v. Union of India4.
The Evidence Act is also amended to include the ‘electronic records’ as admissible
evidence. Section 4 of Information technology Act, 2000 provides for legal recognition of
electronic records and electronic contracts. The recent decision of the government of
granting bail to 780 prisoners of Chanchalguda Jail (Hyderabad, Andhra Pradesh, India)5
after hearing them through a Video-Conference is a welcome measure in the use of
electronic media in the Judiciary. “This facility helps us cut down unnecessary expenses
and reduces changes of prisoners making a break for it during the transit to the Courts”6.
‘Supreme Court allows recording of evidence through audio video’--- “Keeping pace
with the e-justice system the court brought a ground breaking rule into the recording of
witnesses through audio or video technology, thereby indicating the tape recorded
evidence could also be treated as admissible evidence in a court of law”.7 The trial court
has the power to decide whether the entire evidence in particulars be recorded by the
court itself or by the commissioner.

Andhra Pradesh is the first state in India to launch e-Cops (e-Computerized

Operations for Police Services) and a trend-setter in the crimes processing and
investigation by using the technology. It has wired up 395 police stations in Hyderabad
city, Vijayawada, Visakhapatnam, Srikakulam and Ranga Reddy districts. The Law
enforcement becomes more proactive8. It provides of filing of FIRs, transfer of
information relating to the accused, locating arrest information file, preparation of reports

4
AIR 2003, SC 189, WP© 496 of 2002 with WP© No. 570 of 2002, dated October 25, 2002.
5
Chanchalguda Jail (The Times of India, November 15, 2002)
6
Sunil Kumar, Superintendent of Police, Cherlapalli Jail (The Times of India, November, 2002.)
7
The Times of India December 25, 2002
8
Mohmed Shafeeq, ‘Andhra Pradesh Police are All Wired Up’---Indo Asian News Services

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and registers. It not only helps the citizens in filing the complaints online and provides
the transparency of the government in the crime control, law and order and administrative
operations. It facilitates automatic maintenance of register and generation of reports, data
analysis, planning and co-ordination, speedy detection of crimes and monitoring
prosecution.

Efforts are not to provide place for information technology in the legal system.
“India is in the process of forming e-courts with the help of Microsoft, NIIT and Wipro.
The courts are expected to be operational by September”9 says Justice B N Kripal, Chief
Justice of India. The amendments made to the CPC and other legislations avert delays in
civil suits. But it is not enough. Further modifications are required to permit the
application of Information Technology. Other Sections, Orders and Rules relating to
filing the plaints, written arguments are to be amended to facilitate the submission
through Internet, e-mails and CDs. Issuing summons to the defendants, serving the
notices of hearing to the advocates of petitioners and defendants are to be permitted
through faxes, electronic media to avoid waste of time, expenses on manpower. The
records of filings, maintenance of reports and registers, monitoring of proceedings can be
made effectively and copies of judgments, plaints and written statements can be supplied
through the electronic media. Criminal Codes are to be shaped in similar footings.

The concept of e-justice can be applied in other fields of judiciary or quasi-

judicial systems and delivery mechanism, such as handling of consumer grievances
relating to insurance, banking services, services marketing and service matters. The
submission of complaints by the Consumers to the Redressal Forums, Banking and
Insurance Ombudsman, Motor Vehicle Tribunals and Service Tribunals are to be
permitted through electronic media, electronic filing of written statements, arguments
will help to cut short the delays in pronouncing the awards/judgment. Disputes relating to
empowerment and services matters, issues relating to commercial transactions, money
suits and family disputes are allowed to settle through only dispute resolution methods,

9
Jawad Hassan, ‘Towards an E-Legal System---www.jang.comp.pk---October 06, 2002

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which are cost-effective. Use of e-legal system will be striking balance between the two
sayings—“Justice delayed is justice denied” and “Justice hurried also is justice buried”.

In the process, a research has to be undertaken, and an amount of effort has to be

made to identify areas of existing legislations where the information technology can be
functional to cut down the delays in judicial processes. A full-fledged and comprehensive
study is to be made to use the electronic media effectively without compromising quality
of service. A comprehensive checklist is to be designed to display on the websites stating
the requirements of the forms/documents/evidence and other enclosures to be submitted
along with the petitions/complaints through Internet. Calculations of court-fee, online
payment of court fee, an ‘e’ library, data of cases of different courts, networking with
other government departments for accessing the required authenticated data without
waiting, screening the petitions/complaints through Internet, inviting discussions/debates
from the public in public interest litigation, making available the judgments pronounced,
and other related services can be utilized by using the electronic media. The research may
help in formulating a perfect plan of action for application of information technology in
the ‘e’- justice.

A conflict between new era of innovations and a traditional custom-based socio-

economic structure will be the vital element in transforming the courts into a paperless
‘e’-courts and the revolutionary and unprecedented use of cyberspace may bring
challenges of security; safety and privacy of information owing to complexities of ever-
changing technologies and shape into hurdles in the distribution of fruits of information
technology to the citizens. But in terms of the public interest, it is important for the
administration of justice to establish the concept of ‘e’– justice which will certainly play
a pivotal role in the process of justice deliver mechanism.

Legislative Measures for e-Governance in India

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 The year 2001 (exactly a decade ago) was declared as the ‘Year of e-governance’
by the Central Government. Government of India appointed a National Task Force on
Information Technology and Software Development in 1998. e-Governance has two
dimensions. The first is the Governing Society with e-Tools. The second is governing e-
society of Netizens who live in the cyber world, who have no geographical boundaries
and have no physical identity. Even though, the concept of e-Governance (EG) is, in
principle, applicable to all types of Governance including Corporate Governance. The
present discussion is focused on traditional responsibilities of a politically elected body
(Government) entrusted with the administration of a society (Citizens). The essence of
EG is the Communication between the “Governing” and the “Governed”, and the test of
“Good Governance” is a “Harmoniously Living Society”. One of the key features in EG
is to recognize that it includes an attempt to govern the component of the society, which
is accessible through the “Cyber System”. It therefore covers the “Cyber Society” within
the “General Society”.

At the same time, e-Governance also attempts to regulate the Cyber Society itself
because the Government controls the citizen and his property. A better legislation would
facilitate effective functioning of e-governance. Law promotes efficiency in
administration by establishing basic norms of behaviour for the society, so that the
Government can manage by Exception and high degree of voluntary compliance by
citizens to ensure that Enforcement can also be managed by exception at a lower cost.

Apart from this, Law also maintains harmony and peace, enable/ cyber commerce,
protect cyber property, administer cyber taxation, control cyber crimes, guide cyber
judiciary etc. Basically, law has to recognize legal transactions, identity of persons,
virtual nature of properties, understanding and identifying cyber crimes and jurisdiction
once law attributes separate treatment of these concepts perhaps e-governance could be
facilitated. Now, let us examine to what extent the Indian legislature has identified these
separate issues and supported e-governance.

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 The Cyber Laws in the Indian Context came into focus with the Information
technology Bill-1999, which has since been passed as Information Technology Act-2000
(ITA-2000). This was the first comprehensive codification of Laws in India directly
enacted for the regulation of the Cyber World.

The ITA-2000 was a big step towards introducing Cyber Laws for India. First of
all, it provides a legal recognition for Electronic Documents and Digital Signatures as
equivalent to the “Written” or “Typed” or “Printed” counterparts. (Subject to a few
exceptions). It also sets the framework of procedure and standards for Digital Signature.
It also defines actions that are considered “Cyber Crimes” and suggests punitive
measures. Besides, ITA – 2000 has also defined the judicial system for trying and
awarding punishments for Cyber Crimes.

In addition to the above, in the field of “Government-Citizen” (G2C) relationship

management, the following three sections of the ITA-2000 directly address the
requirements of G2C (Government to Citizen) relationship management.

Use of Electronic Records and Digital Signatures in Government and its agencies:10

• Where any law provides for---

¾ the filing of any form, application or any other document with
any office, authority, body or agency owned or controlled by the
appropriate Government in a particular manner;
¾ the issue or grant of any license, permit, sanction or approval by
whatever name called in a particular manner;
¾ the receipt or payment of money in a particular manner, then,
notwithstanding anything any thing contained in any other law
for the time being in force, such requirement shall be deemed to
have been satisfied if such filing, issue, grant, receipt or
payment, as the case may be, is effected by means of such

10
Section 6 of Information Technology Act, 2000

297
 electronic form as may be prescribed by the appropriate
Government.
• The appropriate Government may, for the purposes of sub-section (1),
by rules, prescribe

¾ the manner and format in which such electronic records shall be

filed, created or issued;
¾ the manner or method of payment of any fee or charges for
filing, creation or issue any electronic record under clause (a).

Retention of Electronic Records11

• Where any law provides that documents, records or information shall be

retained for any specific period, then, that requirement shall be deemed to
have been satisfied if such documents, records or information are retained
in the electronic form---

¾ the information contained therein remains accessible so as to

usable for a subsequent reference;
¾ the electronic record is retained in the format in which it was
originally generated, sent or received or in a format which can be
demonstrated to represent accurately the information originally
generated, sent or received;
¾ the details which will facilitate the identification of the origin,
destination, date and time of dispatch or receipt of such electronic
record are available in the electronic record: Provided that, this
clause does not apply to any information, which is automatically
generated solely for the purpose of enabling an electronic record to
be dispatched or received.

11
Section 7 of Information Technology Act, 2000

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 • Nothing in this section shall apply to any law that expressly provides for
the retention of documents, records or information in the form of
electronic records.

Publication of rules, regulation etc, in Electronic Gazette12

Where any law provides that any rule, regulation, order, bye-law, notification or
any other matter shall be published in the Official Gazette, then, such requirement shall be
deemed to have been satisfied if such rule, regulation, order, bye-law, notification or any
other matter is published in the Official Gazette or Electronic Gazette:

Provided that, where any rule, regulation, order, bye-law, notification or any other
matters published in the Official Gazette or Electronic Gazette, the date of publication
shall be deemed to be the date of the Gazette which was published in any form.

Attribution of electronic records13

An electronic record shall be attributed to the originator

If it was sent by the originator himself

By a person who had the authority to act on behalf of the originator in respect of
that electronic record or
By an information system programmed by or on behalf of the originator to
operate automatically.

Similarly Sections 14 and 1514 provide for securing electronic records and securing
digital signature.

12
Section 8 of Information Technology Act, 2000
13
Section 11 of Information Technology Act, 2000
14
The Information Technology Act, 2000

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 The above provisions provide a good framework for the Government departments to
adopt e-Governance practices. In addition, several aspects of Cyber Laws are being
additionally introduced through Telecom Regulatory guidelines, the proposed
Communication Bill etc. The impact of these “Back door laws” needs to be assessed
carefully for their impact on Cyber Society. The upcoming difficulties indicate that the
Netizens need to closely monitor provisions, which may be misused during the EG
process by various functionaries of the Government including the Police and the
Regulatory Officers. The other issues to be taken care of are ambiguities, loopholes
besides creation of new power centers, lack of accountability, over regulation which may
lead to harassment of honest Netizens and continuance of inefficient and corrupt
Governance.

The Netizens and the Professional Community therefore have an urgent need to take
an in-depth look at the provisions and participate in the process of formulation of the
legal framework. This is both a moral responsibility of the Netizens as well as a necessity
to protect the future of the “Cyber Society”. The initiatives such as the “Netizen’s Forum
For Credible Cyber Regulations” and the Setting up of a “CERT” (Computer Emergency
Response Team) in India and Cyber Law College, undertaken by the undersigned are
steps in this direction Computer Professionals need to participate. Unless a total
participation is ensured, every netizen might forgo a substantial right to have “good
governance”.

The Constitutional provisions supporting this e-governance could be related to

Article 19(1) (a) and Article 2115 which implicitly speak about ‘Right to Know’. The
Right to Know or access to information is the basic right for which the people of
democratic country like India aspire for. On the other hand, ‘Right to Know’ strengthens
participatory democracy. In pursuit of the aspirations of the constitution framers, the
Government of India has adopted Information Technology.

15
Constitution of India

300
 With a view to maximize the benefits of information technology, many awareness
programs and conferences have taken place like National Conference of IT Ministers,
National Task Force on Information Technology and Software Development, in which
the common consensus was arrived that:

ƒ The physical and civic infrastructure of the existing and emerging IT

development centers will be improved.
ƒ The content on the net will be developed on almost all Indian languages.
ƒ Indian languages will be developed on computers.
ƒ There is a tax relaxation on IT based sales.
ƒ The Union and State Governments will take specific measures to promote e-
governance to improve transparency, accountability and efficiency.
ƒ Official approval to be given for IT education shall be strengthened.
ƒ The decision on setting up of private universities should be speed up.
ƒ Availability of bandwidth must precede the demand.
ƒ A special tariff should be prescribed for accessing the internet for educational
institutions.

e-Justice: Global

e-Justice16, a pilot initiative funded by United Nations Development Programme

(UNDP) is a citizen centric approach for providing access to justice through
Information and Communication Technology (ICT). It will help to provide a
crucial link between rule of law, poverty eradication, human rights and
sustainable human development and to provide better access to justice.

The project aims at promoting legal awareness through an electronic interface by

presenting the key legislations in a simple manner and by simplifying relevant judgments,
certain procedural regulations and enlightening on the existence of alternative remedies
and making the same available to the general public through information Kiosks etc

16
(http://www.ejustice.org.in/home.do) visited on 12 10 2009

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 Services

1. The e-Justice project will enable access to legal information provided in a simple
manner, through Kiosks set up in select places in the district of Mahabubnagar.
The Pilot project is launched at Shadnagar and will be followed by kiosks at
Gadwal, Nagarkurnool and Narayanpet. The public at large can approach them
and obtain the required information. The e-Justice website can also be accessed
from anywhere in Mahabubnagar district where Internet facility is available.
Being a pilot project, the website services have been limited to the district of
Mahabubnagar as on date.
2. Special emphasis has been made to focus on problems faced by women, children
and other marginalized sections of the society. Accordingly, land related laws,
women related laws, labour laws and general laws affecting the common man in
his day to day life have been included. More laws will be updated as the access to
the kiosk increases.
3. The information available to the citizens will make them aware of the law
involved in the issue, the process for solution and the various modes of redressal
available, whether through the courts or through Alternate Dispute Resolution
mechanisms such as Lok Adalats, assistance of Legal Services Authorities, the
Human Rights Commission or various civil society organizations.
4. The e-Justice portal will also facilitate the citizen to send queries to the legal
experts at CGG or file an online application to the Legal Services Authority or the
Revenue Courts wherever applicable seeking its involvement in guiding him/her
through the proper mode of resolving the problem.
5. Once the concerned authority considers the person eligible for its services, then
depending on the nature of the grievance, it will propose the options available,
i.e., whether the dispute is entitled to be referred only to the Court System or to
Lok Adalats. The concerned Authority will direct the case to any of the advocates
on its panel to represent the citizen in the appropriate forum.
6. A mechanism will be put in place to ensure that the advocate is required to submit
a report on proceedings of every hearing to the concerned Authority who shall in

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 turn forward the same report to the web portal which can be accessed by the
concerned citizen to know the status of his case.

Services you can avail at the kiosk:

• Obtain the required legal information.

• Take a print out of the information if necessary.
• Send queries to legal experts at CGG, the Legal Services Authority or any other
authority.
• Send online application of your legal problem to the concerned authority.
• Check the status of your case if the concerned authority has accepted your
application.

Challenges

Utilizing electronic filing would require legal recognition and validity of e-

signatures as in real life court forms are required to be signed personally by the party who
is filing the document. Court filing fees are payable at the time of lodging, in the e-justice
system these can be paid either by deducting the appropriate fee from a credit account, or
even something akin to an electronic funds transfer (EFT)17. This might impede litigants
with limited financial resources but they can file documents in hard copy and these can
be scanned into the system.

With the current infrastructure, India is not yet ready to take the plunge. Long
power cuts and limited internet accessibility, e-courts still has a long way to go. People in
India are still not comfortable with the idea of a computer. Even for some IPR attorneys it
is a monstrous device. One of the major hurdles is the practical difficulty in serving
summons. Under the Civil Procedure Code, all documents have to be supplied to the
defendant. Another problem is virus. "The opposite party may send a virus infected
document, just to bother and harm the person. What can we do in such cases? ," said
Sheetal Palegaonkar, a company lawyer.

17
Guided by the Electronic Funds Transfer Act (EFTA)-Parag Diwan & Shammi Kapoor – Cyber and E-
Commerce Laws-Bharat Publishing House- New Delhi-2000 Page 276

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 As per the new Civil Procedure Code, electronic service is acceptable. But the
effectiveness of it has to be rechecked. What if somebody doesn’t check his e-mail for
weeks together? And cases where you block e-mails from a particular source. The
problem is, people making laws have never practised and people practising in courts are
never consulted.

Technology should no doubt be utilised to administer quick and transparent

justice for after all justice delayed is justice denied. The bar and bench at all levels need
to adopt an open-minded approach towards the use of scientific tools in the legal system.

Amendments to Avert Delays

The CPC (Amendment) Act, 1999 (46 of 1999) which came into effect from July
01, 2002 has brought some of the changes into the Civil Procedure Code facilitating the
use of electronic media in to the legal system.

Order 5, Rule 21 and 24 are amended to include the `Fax and Electronic Mail
Services' as modes of serving summons to defendants residing within the jurisdictions of
another court and to the defendants residing in the prisons, Rule 14 of Order 18 is
amended to facilitate the recording of evidences, hearing of the suits and examination of
witness using the electronic media. The amendments to CPC are made with an intention
to avert delays in the justice delivery mechanism.

The Evidence Act is also amended to include the `electronic records' as

admissible evidences. Section 4 of Information Technology Act, 2000 provides for legal
recognition of electronic records electronic contracts.

The recent decision of the government of granting bail to the 780 prisoners of
Chanchalguda jail (Hyderabad, India) after hearing them through a videoconference is a
welcome measure in the use of electronic media in the judiciary.

Keeping pace with the e-justice system, the court brought a ground breaking rule
into the recording of evidence of witnesses through audio or audio visual technology,

304
thereby indicating that tape recorded evidence could also be treated as admissible
evidence in a court of law.

Good Bye to legal delays

A revolutionary change had taken place in parliamentary transactions by making

available the activities of the parliament through live broadcasting. The existing laws are
being amended to recognize transactions that have taken place through electronic media
and to accept the electronic records as evidences.

Online filing and service of notices through e-mail can definitely save a lot of
time. This will take care of evasion of service of summons which is generally done by
paying local postmen and courier boys or by not sending acknowledgment cards.

The biggest advantages of operating through an e-court can be taking expert

opinions from anywhere in the world through video-conferencing. On IPR issues, at
times views of experts and scientists are required to present a strong case. Video-
conferencing can be a real boon in these cases.

To make better e-courts

e-Courts should be equipped with Cyber savvy judges. Since it will take some
time to create Cyber savvy judges, India should revise its system to introduce the Jury
based trials for Cyber cases in e-Courts. This will enable cases to be decided quickly and
efficiently since the services of experts can be recruited for the jury.

Provision should be made for the witnesses to submit digitally signed electronic
statements, if necessary through a video conferencing facility. This would be the only
way witnesses at far off places can conveniently take part in the judicial process. A
conflict between new era of innovations and a traditional and custom-based socio-
economic structure will be the vital element in transforming the courts into paperless e-
courts.

305
 And the revolutionary and unprecedented use of cyberspace may bring challenges
of security, safety and privacy of information owing to complexities of ever-changing
technologies and shape into hurdles in the distribution of fruits of information technology
to the citizens. But, it is important, in the public interest and in the administration of
justice to establish the concept of `e'-justice, which will certainly play pivotal role in the
process of justice deliver mechanism.

Methods of Dispute Resolution include

• a) lawsuits (litigation)
• b) arbitration
• c) collaborative law
• d) mediation
• e) conciliation
• f) many types of negotiation
• g) facilitation

One could theoretically include violence or even war as part of this spectrum, but
dispute resolution practitioners do not usually do so; violence rarely ends disputes
effectively, and indeed, often only escalates them. Some individuals, notably Joseph
Stalin, have stated that all problems emanate from man, and absent man, no problems
ensue. Hence, violence could theoretically end disputes, but alongside it, life.

Dispute resolution processes fall into two major types:

1. Adjudicative processes, such as litigation or arbitration, in which a judge, jury or

arbitrator determines the outcome.
2. Consensual processes, such as collaborative law, mediation, conciliation, or
negotiation, in which the parties attempt to reach agreement.

Not all disputes, even those in which skilled intervention occurs, end in resolution.
Such intractable disputes form a special area in dispute resolution studies

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Judicial Dispute Resolution

The legal system provides a necessary structure for the resolution of many
disputes. However, some disputants will not reach agreement through collaborative
processes. Some disputes need the coercive power of the state to enforce a resolution.
Perhaps more importantly, many people want a professional advocate when they become
involved in a dispute, particularly if the dispute involves perceived legal rights, legal
wrongdoing, or threat of legal action against them.

The most common form of judicial dispute resolution is litigation. Litigation is

initiated when one party files suit against another. In the United States, litigation is
facilitated by the government within federal, state, and municipal courts. The proceedings
are very formal and are governed by rules, such as rules of evidence and procedure,
which are established by the legislature. Outcomes are decided by an impartial judge
and/or jury, based on the factual questions of the case and the application law. The
verdict of the court is binding, not advisory; however, both parties have the right to
appeal the judgment to a higher court. Judicial dispute resolution is typically adversarial
in nature, e.g., involving antagonistic parties or opposing interests seeking an outcome
most favorable to their position.

Retired judges or private lawyers often become arbitrators or mediators; however,

trained and qualified non-legal dispute resolution specialists form a growing body within
the field of ADR. In the United States of America, many states now have mediation or
other ADR programs annexed to the courts, to facilitate settlement of lawsuits.

Extrajudicial Dispute Resolution

Some use the term dispute resolution to refer only to alternative dispute resolution
(ADR), that is, extrajudicial processes such as arbitration, collaborative law, and
mediation used to resolve conflict and potential conflict between and among individuals,
business entities, governmental agencies, and (in the public international law context)
states. ADR generally depends on agreement by the parties to use ADR processes, either
before or after a dispute has arisen. ADR has experienced steadily increasing acceptance

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and utilization because of a perception of greater flexibility, costs below those of
traditional litigation, and speedy resolution of disputes, among other perceived
advantages. However, some have criticized these methods as taking away the right to
seek redress of grievances in the courts, suggesting that extrajudicial dispute resolution
may not offer the fairest way for parties not in an equal bargaining relationship, for
example in a dispute between a consumer and a large corporation. In addition, in some
circumstances, arbitration and other ADR processes may become as expensive as
litigation or more so.

Online Dispute Resolution

Dispute resolution can also take place on-line or by using technology in certain
cases. Online dispute resolution, a growing field of dispute resolution, uses new
technologies to solve disputes. Online Dispute Resolution is also called "ODR". Online
Dispute Resolution or ODR also involves the application of traditional dispute resolution
methods to disputes which arise online.

Online dispute resolution (ODR) is a branch of dispute resolution which uses

technology to facilitate the resolution of disputes between parties. It primarily involves
negotiation, mediation or arbitration, or a combination of all three. In this respect it is
often seen as being the online equivalent of alternative dispute resolution (ADR).
However, ODR can also augment these traditional means of resolving disputes by
applying innovative techniques and online technologies to the process.

Alternative Definitions

In practice it is difficult to provide a self-contained definition of ODR, and given

the pace of change it may not even be possible to do so. The use of technology usually
involves the use of internet-based communications technology at some stage, but ODR
does not necessarily involve purely online processes – further, many could be replicated
offline using pen and paper, or could be achieved using computers without internet
connections.

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 The range of terms and acronyms used to describe the field augments the confusion
often felt by those unfamiliar with the new field of ODR. These terms include:

• a) Internet Dispute Resolution (iDR)

• b) Electronic Dispute Resolution (eDR)
• c) Electronic ADR (eADR)
• d) Online ADR (oADR)

ODR has emerged as the preferred term in recent years. It is uncertain whether these
processes form a new discipline of ADR or a tool to aid existing methods of dispute
resolution. The most appropriate view would be to view ODR as an interdisciplinary field
of dispute resolution.

Methods of ODR

The most common typology of methods of ODR consists of:

• a) Automated Negotiation
• b) Assisted Negotiation
• c) Online Mediation
• d) Online Arbitration

Automated Negotiation relates to those methods in which the technology takes over
(aspects of) a negotiation. Most of the ODR services in this area are so-called 'blind-
bidding' services. A blind bidding service is an auction mechanism where some or all
information about the players' bids is hidden. If the bids of both parties come within a
predetermined range the technology automatically settles the dispute.

In Assisted Negotiation the technology assists the negotiation process between the
parties. The technology has a similar role as the mediator in a mediation. The role of the
technology may be to provide a certain process and/or to provide the parties with specific
(evaluative) advice. The online equivalents of mediation and arbitration are very similar

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to these offline dispute resolution techniques. Most ODR providers offer services that use
two or more of the methods mentioned above.

ODR in India

Online dispute resolution (ODR) in India is in its infancy stage and it is gaining
prominence day by day. With the enactment of Information Technology Act, 2000 in
India, e-commerce and e-governance have been given a formal and legal recognition in
India. Even the traditional arbitration law of India has been reformulated and now India
has Arbitration and Conciliation Act, 1996 in place that is satisfying the harmonized
standards of UNCITRAL Model. Even the Code of Civil Procedure, 1908 has been
amended and section 89 has been introduced to provide methods of alternative dispute
resolution (ADR) in India.

Challenges to ODR Implementation in a Developing Country

18
The term “digital divide” is descriptive of the disparity in the access to
technology among the rich and the poor. It is a divide engendered, not by technology
itself, but by a pre-existing economic gap: like other benefits of human invention and
labor, access to technological devices such as the telephone, computers and the internet
come at a cost that is usually beyond the means of the underprivileged comprising a large
segment of society.

The multitude of applications developed using the internet provides an indication

of the far-reaching impact of, and the many benefits that may be derived from, this
technology. Given the manner by which the internet has transformed the shape of
commerce and society, particularly in developed nations, the concern for the digital
divide springs from the internet’s exclusionary effect: to the extent that commerce,
government services and civic interaction become dependent upon the internet, the ill-
effects of lack of access is exacerbated.

18
Claro v.Parlade

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 Online dispute resolution (ODR) is an example of a beneficial application that
takes advantage of online technologies. The lack of recourse for grievances arising from
online transactions was perceived as one of the formidable barriers to the growth of
electronic commerce. Accordingly, early ODR initiatives focused on its use to enhance
confidence in electronic commerce. With the explosive growth of online transactions, the
use of ODR is similarly growing,1 and it is taken for granted that high internet diffusion
and public confidence in e-commerce are preconditions to the enjoyment of benefits from
ODR. The fact that ODR has taken root in developed countries with high internet
penetration rates appears to confirm this belief.

Developing countries typically do not have the infrastructure to enable

widespread internet access, and this naturally limits the level of e-commerce and,
correspondingly, the need for ODR in online transactions. Still, despite the relative
infancy of ODR and its underlying technologies, it is quite plain that it may be adapted
for the offline environment. Thus, while a low level of internet diffusion may
understandably hamper access to ODR, it ought not necessarily preclude the exploitation
of ODR technologies to benefit both the online and offline community. The identification
of specific situations and models for maximizing the benefit from ODR, taking into
account a developing country’s financial and infrastructural constraints, is certainly a
huge challenge. In this Chapter, I will describe a simple proposal to precisely take on this
challenge and implement ODR in the Philippines, a developing country with a population
of 80 million spread across over 7,000 islands. Section 2 briefly describes existing
initiatives to Proceedings of the UNECE Forum on ODR 2003
http://www.odr.info/unece2003 use ODR to supplement or improve the efficiency of
judicial processes, or to increase access to justice beyond the judicial framework for
dispute resolution. In Section 3 of this Chapter, the positive and negative factors that may
influence the wide-scale adoption of ODR in the Philippines shall be explored and
weighed. Finally, Section 4 describes the proposed ODR implementation in the
Philippines.

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Enhancing Access to and Quality of Justice using ODR

ODR, as used in this chapter, refers to the various uses of the Internet and other
web-based technologies to facilitate traditional Alternative Dispute Resolution (“ADR”)
or adapt ADR techniques to the online environment, or may even cover mechanisms for
dispute prevention (such as education, outreach, rating and feedback programs),
ombudsman programs, conflict management, assisted negotiation, early neutral
evaluation and assessment and consumer programs. ADR refers to methods of resolving
disputes, outside the traditional litigation process, that may be chosen by the parties to
resolve a future or a current dispute.

ADR grew as a response to shortcomings of the court system decades ago, as the
clogging of court dockets worsened and the period for dispute resolution through
litigation correspondingly lengthened. It was called “alternative”, being outside of the
judicial process, and slowly gained currency because of the perception that it could
respond to concerns of parties to a dispute more efficiently, inexpensively and quickly
than traditional litigation. ADR offers to parties the flexibility to choose the dispute
resolution procedure that seems most appropriate given the nature of their relationship,
the subject matter of the dispute, and their specific needs such as confidentiality, cost-
effectiveness, and similar requirements. Being a private process, it is generally informal
and less adversarial, solution-oriented rather than blame-oriented, and less likely to be
stymied by procedural or jurisdictional roadblocks.

INTERPRETATION OF DIFFERENT ITEMS & DOCUMENTS

What does the legal term “service of documents” mean in practical terms?

The service of judicial and extrajudicial documents in and from foreign countries
is basically the method of ensuring that the information they contain is made available to
the addressees: parties, witnesses or participants in civil or commercial cases in the
issuing State.

Why are there specific rules on the “service of documents”?

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 The rules meet an increasing need on the part of the authorities to ensure the swift
and efficient administration of justice in trial proceedings involving non-national aspects
and the need for improved coordination of legal systems under international law.

Which documents need to be served formally?

Judicial documents are issued in the course of civil or commercial proceedings:

notifications of proceedings, summonses, decisions, applications relating to appeals and
other similar notifications. Extrajudicial documents are not issued by the judicial
authorities but can be used in civil or commercial proceedings.

Who is responsible for serving a document?

The following persons are responsible for serving documents to

Claimants, lawyers, clerks of the court, specialist professions, such as “huissiers de

justice”, public officials, the police, the postal service, etc.

• Officers of the Court

The Code of Civil Procedure lays down detailed rules on how officers of
the court should serve summonses.

It states that summonses and all other procedural documents are to be

served at the place of residence or domicile of the person to whom they are
addressed. Where the person in question has a farm or commercial, industrial or
professional premises, the documents may be served there. Service may take
place anywhere as long as the person summonsed receives the document. If the
person is in the armed forces, the summons is served on the appropriate superior
officer. Where the place of residence of members of a ship’s crew is not known,
documents are served on the captain of the port where the vessel is registered.
Where the person is in custody, the documents are served on the prison
authorities. If the person is a patient in a hospital, hospice or sanatorium,
documents are served on the management of the institution. Summonses and all
other procedural documents may be served on an official or anyone entitled to

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receive correspondence who is clearly named (with forenames), whose function is
described and who duly signs the proof of receipt.

The person summonsed must be served the summons in person and will
sign the acknowledgement of receipt, while the person serving the document will
certify the person’s identity and signature. Where the person summonsed is at
home but does not wish to accept the summons or takes it but does not wish to or
is unable to sign the acknowledgement slip, the officer of the court will leave the
summons in his hands or, where the addressee refuses to accept it, will affix it to
the door of the premises and note the incident in a report. If the person
summonsed is not at home, the officer of the court leaves the summons with a
member of the family or, if there is no relative there, anyone else living with him,
or anyone who usually takes in the post. Where someone living in a hotel or
condominium has not indicated the room or apartment number, the officer of the
court leaves the summons with the administrator or porter, or with the person
who normally deputizes for them. The person who receives the summons signs
the acknowledgement of receipt, while the officer of the court will certify the
person’s identity and signature and draw up a report on the events. If the person
does not wish or is unable to sign the acknowledgement of receipt, the officer of
the court will draw up a report, leaving the summons with the person. Where the
person summonsed does not wish to accept the summons or is not at home, the
officer of the court will affix it to the door or to the main door of the premises if
the person has not indicated the number of the room or apartment he is living in.
The officer of the court will then enter all the details of the events in a report on
the operation.

Documents may not be served on anyone under the age of 14 or anyone

incapable of pleading. Legal capacity is assumed unless there is evidence to the
contrary. It is not possible to serve summonses or other procedural documents on
legal persons by affixing the documents to doors, or to associations or companies

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who can legally be summoned to stand trial, unless they refuse to accept the
documents or are not on the premises at the time.

Where the party has elected a domicile and appointed someone to receive
procedural documents, those documents may be served on that person or, in the
absence of any such indication, at the party’s domicile.

Where documents cannot be served because the building has been demolished or
abandoned, or for any other similar reason, the officer of the court deposits the
documents with the clerk of the court, who will inform the party of the fact in
good time.

If it becomes clear that, in spite of all the claimant’s efforts, it is

impossible to find out where the defendant is living, the presiding judge will
order the summons to be published. It is published by being affixed to the door of
the court. It can also be published in the Romanian Official Gazette or a major
newspaper, if the presiding judge or the bench considers it necessary. The
summons must be affixed or published in the Official Gazette or a major
newspaper at least 15 days before the trial date. In urgent cases the presiding
judge or the bench may shorten this period to 5 days. If the defendant appears and
can prove that he was summoned in bad faith, all procedural documents resulting
from the authorization to issue the summons will be declared null and void, and
the claimant may be fined and required to pay legal costs.

The party appearing in court in person or his or her representative may not
refuse to accept procedural or other documents presented in the course of the
hearing. In these cases the court may, on application, allow a period of time for
the documents to be studied. Procedural documents may not be served on
statutory holidays, except in urgent cases where the presiding judge has given
permission. If any of the parties move during the course of the proceedings, the
change of address will not be taken into consideration unless a written application
to this effect is entered in the brief, and the opposing parties are informed by

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 registered letter, receipt of which must be attached to the case file together with
the application notifying the court of the change.

See the answers to Questions 3 and 5

• Bailiffs are allowed to serve judicial and non-judicial documents and procedural
documents (Act No 188/2000 on bailiffs). The fee for the service is set at between
RON 20 and RON 400 (situation as at March 2007).
• Notaries public are also allowed to serve judicial and non-judicial documents and
procedural documents (Act No 36/1995 on notaries public and notarial activities
and its implementing rules).

How the document is normally served in practice?

If there are alternative methods, please describe all methods.

(personal service, postal service: registered or ordinary letter, fax, electronic means).

What happens when, in exceptional cases, service on the addressee himself is not
possible (e.g. because he is not at home)?

If there are alternative methods, please describe all methods. (personal service to
other persons than the addressee, deposit (e.g. in mailbox at domicile or place of
business), deposit with competent public authority such as "remise au parquet" or at post
office, public notice, letter to last known address, etc.)

Unless the law provides otherwise, the court may not rule on a claim until after
the parties have been summonsed or have appeared. Claims and all procedural
documents are notified ex officio by officers of the courts or any court employee or by
officers of the court or other employees of courts with territorial jurisdiction for the area
where the person to be notified is currently residing.

The following natural and legal persons may be served a summons:

• the State, the county, the local authorities or any other legal person constituted
under public law, in the person of the head of the relevant authority at the

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 authority’s disputed claims office at central headquarters or, where there is no
disputed claims office, at the administration’s head office;
• legal persons established under private law, in the person of their representatives,
at the head office, branch office or, depending on the circumstances, at the
representative's office;
• associations and companies without legal personality, through their management
bodies at their administrative offices;
• bodies being reorganized or wound up, through the official receiver or, where
necessary, the liquidator;
• persons without legal competence through their legal representatives;
• through a special guardian where one has been appointed;
• the staff of Romanian diplomatic missions and consulates, Romanian citizens
seconded as officials to international organizations and members of their families
living with them abroad, through the Ministry of Foreign Affairs;
• other Romanian citizens other than those referred to in the previous point who are
abroad in the interests of the service, through the central body which dispatched
the person or, as an alternative, the person who sent him or her;
• in cases where no special arrangements are made under international conventions
to which Romania is party or under any special regulations, persons abroad
whose domicile or place of residence is known, by means of a written summons
sent by registered mail with proof of receipt. If the defendant is living abroad, the
presiding judge may set a longer deadline. The defendant is informed in the
summons that he or she is required to elect a domicile in Romania to which all
documents relating to the proceedings can be forwarded. If the defendant fails to
comply, documents will be served by registered mail with acknowledgement of
receipt to the Romanian postal service naming the documents sent as proof that
the procedures have been followed;
• if the domicile or place of residence of persons abroad are unknown, the
summons is published;
• in all cases, if those living abroad have legal representation in the country,
summonses are served on the legal representative;

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 • where the person's domicile or place of residence is unknown, summonses are
published;
• until they are involved in the trial, documents are served to heirs through a special
guardian appointed by the court.

The ways of serving documents on the addressee or some other person are set out
in Section 92 of the Code of Civil Procedure. If the person cannot be found at his or her
domicile or has not indicated the number of his or her flat, the officer will serve the
summons on the following persons:

• a family member;
• any other person living at the same place;
• any other person who regularly receives correspondence: administrators or
porters, or anyone regularly taking their place.

The ways of serving documents on the addressee or some other person are as follows

• in person;
• in hand (if the recipient does not wish or is unable to sign the acknowledgement
of receipt, the summons is left with the person and the officer of the court enters
the incident in a report);
• by attachment to the door or the main entrance (a report is written if the recipient
does not wish to accept the summons or is not present).

Documents may not be served on anyone under the age of 14 or anyone incapable
of pleading. The aim of the summons procedure is to inform the parties of the existence
of the proceedings, the date of the trial and the venue. This aim can also be achieved by
informing the party attending the first session of the proceedings.

Is there any written proof that the document has been served?

(postal receipt, affidavit, "Zustellungsurkunde”, etc.).

YES

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 • Proof of service (or a service report) is an official document evidencing the
statements made by the officer serving the documents, unless proven to be false.
Therefore, as our courts have ruled in practice, proof of having served a summons
and the report drawn up by the officer of the court if the person on whom the
documents were to be served is not at home at the time or refused to take delivery
of the summons are the only documents which can prove that the procedure for
serving documents was followed in accordance with the law.
• Postal receipt. Under Section 87(8) of the Code of Civil Procedure, where no
special arrangements are made under international conventions to which Romania
is party or under any special regulations, persons abroad whose domicile or place
of residence is known, by a written summons sent by registered mail with proof
of receipt. The fourth subparagraph of Section 1141 applies. If the domicile or
places of residence of persons abroad are unknown, documents are served in
accordance with Section 95. In all cases, where those living abroad have legal
representation in the country, summonses are served on the legal representative

Under Section 8 of Act No 189/2003, proof of service abroad can be obtained in the form
of:

a. communication by post direct to the addressee with proof of receipt of registered

letters containing the summons and annexed documents;
b. communication through the central authorities of the requesting State or the
Romanian diplomatic mission or consulate in the requesting State using the form
provided for under Section 6(3).

What happens if something goes wrong and the addressee does not receive the
document or the service is effected in violation of the law (e.g. the document is served on
a third person)? Can the service of the document nevertheless be valid (e.g. can violations
of the law be remedied) or must a new effort to serve the document be made?

Effects

• Judgment may be deferred.

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 Before entering into discussion of the case, the parties may ask the court to defer
judgment on matters not currently before the court. Deferments without
discussion are usually issued if procedural irregularities need remedying, such as
a failure to summons witnesses or experts.

• Procedural documents may be annulled where there has been a failure to

summons a person or someone has been unlawfully summonsed.
• Objections may be entered on points of law.

At the preliminary stage of a public trial, a key moment in the proceedings is the
first day of appearance. Under Section 134 of the Code of Civil Procedure, the
first day of appearance is the first occasion when the lawfully summoned parties
may present their arguments. The first day of appearance should not be confused
with the first session of the hearing. The first session of the hearing may be the
same as the first day of appearance but only if the following two requirements are
met, namely that the parties have been lawfully summoned to appear and can
present their arguments. The first day of appearance is important as the defendant
may enter objections on points of law and the validity of procedures up to that
point. Objections on points of law basically relate to the formal conditions of the
proceedings. Most objections fall into this category, such as objections regarding
the failure to summons people or unlawful summonses.

• This may one of the grounds for a refusal to recognize and enforce a decision
taken by a foreign court that may therefore be declared unenforceable abroad.
Section 171 of Act No 105/1992 implementing international private law states
that documents to be annexed to applications for the recognition of decisions
taken by foreign courts should include copies of the proof of service of
summonses and the referral documents notified to the party not present at the
foreign court or any other official document showing that the summons and
referral document have been duly recognized by the party against whom the
decision was delivered.

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 Do I have to pay for the service of a document and, if so, how much?

NO, if notification and service are performed by an officer of the court. The fee
for the services rendered by bailiffs serving and giving notice of procedural documents is
set at between RON 20 and RON 400 (situation as at March 2007).

e-mail as Court Evidence

e-mail may be admitted as evidence in court proceedings and so organizations

need to consider the practical issues this raises. These issues include taking steps to
enhance the reliability of email evidence, to manage the storage of email effectively and
to have appropriate controls in place regarding its use.

Admissibility and Reliability

e-mail is a form of documentary evidence and can be admitted as evidence in

court in the same way as can other forms of documentary evidence. However, as with
other forms of evidence, the reliability of e-mail evidence will be subject to scrutiny. This
can be a particular issue in the context of e-mail or other electronic evidence, since
measures which may protect the integrity and/or authenticity of electronic evidence (such
as the use of digital signatures or other forms of encryption) are not always used. As a
result, the reliability of e-mail as evidence may be subject to attack.

Organizations can however take steps that will potentially enhance the reliability
of e-mail as evidence. One way of doing this is to demonstrate that e-mail has been
created, compiled and stored in accordance with good industry practice. In particular,
compliance with the BSI 'Code of Practice for Legal Admissibility and Evidential Weight
of Information Stored Electronically' (the Code) will be relevant. The Code provides a
framework that can be used to assess the reliability of evidence stored electronically.
Compliance with the Code does not automatically mean that electronically stored
documents will be regarded as reliable, but it is likely to strengthen any claim of
reliability. Equally a failure to comply with the Code could leave a party open to the
suggestion that e-mail evidence is unreliable.

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Disclosure

However it should be recognized that, just as e-mail can be used to support a case,
it can also be used to undermine it. This is important because prior to court proceedings
taking place organizations may be required to disclose relevant e-mails to the other party
to the dispute. This can cause problems because of the way in which e-mail is used. E-
mail is something of an informal medium, and individuals may often write things in an e-
mail that they would not include in a standard letter or memo. For example, individuals
may send e-mails to each other discussing problems with a project and may make
admissions of fault that they would not have made had they been aware that such e-mails
could be disclosed to the other party. Policies regulating the use of e-mail are therefore
important. In addition, organizations can in some cases rely on particular legal rules to
avoid the need to disclose e-mails in particular cases. However the rules in this area are
complex and legal advice will be needed to confirm their application.

The requirement to disclose e-mail also means that organizations should have
appropriate systems in place to manage and store e-mails. Unless this is the case then
problems may arise if (for example) e-mails have been deleted or if there is no adequate
e-mail archiving process in place.

Practical steps

Given the above issues, there are a number of practical steps that organizations
should consider taking in relation to e-mail, including the following:

1. taking steps to enhance the reliability of e-mail as court evidence, through the use
of systems to manage e-mail that comply with good industry practice;

2. putting in place internal procedures to control the use of e-mail, to avoid

damaging disclosures being made;

3. having regard to legal rules which may enable the disclosure of e-mails to the
other party to be limited; and

4. implementing measures to simplify the process of disclosing e-mails to the other

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 party where disclosure is required.

By taking the above steps, organizations should be able to rely on e-mail as

evidence and handle e-mail effectively during the course of disputes.

***

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