Kerry Underwood

MCKENZIE ONLINE JUDGES COMING SOON

with 8 comments


Giving the Lord Slynn Memorial Lecture earlier this month the Master of the Rolls spoke about the proposed online court and admitted that the failed Rechtwijzer Dutch Scheme had been inspiration behind the proposals for an online court in England and Wales.

 

That system was set up in 2014 but is to be abandoned next month and is very widely regarded as an absolute disaster with only around one in 100 qualifying disputes actually being dealt with.

 

The concept is logically flawed.

 

The Master of the Rolls referred to three stages:

 

1. The Online Solutions Court will assist individuals to find the right sources of legal advice and help in order to enable them to consider whether they have a viable legal dispute. By helping individuals before who have not yet reached the stage of beginning legal action it will “secure access to preventive justice”.

 

I have not got a clue what “preventive justice” means.

 

If we had a properly funded system of law centres, Citizens Advice Bureaux and legal aid would that not “assist individuals to find the right sources of legal advice and help in order to enable them to consider whether they have a viable legal dispute.“

 

What on earth does an Online Solutions Court bring to the party in terms of advising people as to their legal rights?

 

Furthermore, as any lawyer who has been practicing for more than about two days knows, the law itself is only a small part of our work and the advice that we give to clients.

 

The law is really the background to the potential solutions.

 

Does the client wish to engage in litigation?

 

Does the client wish to maintain a relationship with the proposed opponent?

 

Should the matter be dealt with by negotiation, a settlement and ADR? How obvious is it that it is not the role of the court?

 

2. “Case Officers and Court Administrators exercising judicial functions under the supervision of the judiciary” will assist parties to manage the claim and reach a settlement.

 

“This is a significant departure from the court’s existing role as it will require a Court Officer actively to engage the parties in mediation and conciliation processes.

 

Unqualified and judicially untrained very junior civil servants will be “exercising judicial functions”.

 

That is a paid McKenzie Friend, except that they cannot be a friend to both parties.

 

How obvious is it that it is not the role of the court to assist parties to manage the claim and reach a settlement, rather it is to hear and try the claims.

 

It is the job of lawyers, insurers, ACAS, mediators and a whole host of others to try and reach a settlement.

 

It is not the job of the court!

 

This also ignores the fact, as to all of the “litigation as a last resort” evangelists that the vast majority of claims, well over 90% and in some areas over 99%, are settled without a hearing.

 

In other words the system, as far as resolution and settlement is concerned, works extremely well.

 

3. The claim will be adjudicated by a judge. However “the process will not necessarily take place in a traditional courtroom. It may be carried out online by video link, by telephone or on a paper”.

 

The idea of cross-examination being carried over the telephone is so ludicrous that it beggars belief that anyone with experience of courts should seriously suggest that that is an acceptable or appropriate way for any dispute which has reach a trial to be dealt with.

 

Funny enough this scheme will only be for low value claims and will not be used in the High Court or Commercial Court or whatever.

 

This is yet another attack on ordinary people with ordinary claims.

 

I trust that on the Friday morning when Jeremy Corbyn becomes our Prime Minister this nonsensical idea will be ended forever.

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Written by kerryunderwood

June 23, 2017 at 11:18 am

Posted in Uncategorized

8 Responses

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  1. Kerry – I was amongst the first to express reservations about the Rechtwiijzer, so I hope you’ll take my word for it when I say that describing it as unanimously regarded as an absolute disaster is utter rubbish even if one reads in your natural tendency for the bon mot of the man in the street (which I would usually applaud). Indeed, I’d be interested (and genuinely so) in you being able to point to anyone saying it was an absolute disaster other than your good self. Up until the announcement of its demise it was *almost* universally and unreservedly applauded, unwisely so in my opinion, and it remains a plausible model for certain kinds of disputes, and especially as part of a more formal system of dispute resolution. There are of course problems to be overcome and limitations which are not well acknowledged some of which you spot.

    I don’t know where you got your 1% figure from either – it would be interesting to hear.

    Richard Moorhead

    June 23, 2017 at 11:44 am

    • Richard

      In terms of the 1% figure, this is based on the following calculations.

      The number of divorces in the Netherlands in 2015 was 34,532 and the last few years shows general stability in that figure, but with the number rising by around 300 a year.

      That gives the following figures:

      2015 – 34,532

      2016 – 34,832

      50% of 2017 (35,132 ÷ 2) – 17,566.

      On the basis that the scheme came in at the beginning of 2015, although apparently it was launched earlier but the 2.0 product did not come in till later, we have the following total number of divorces:

      2015 – 34,532

      2016 – 34,832

      Half of 2017 – 17,566

      Total – 86,930.

      As at 27 April 2017, which I accept obviously excludes figures for May and June 2017, 813 couples had completed cases using Rechtwijzer 2.0.

      That is a rate of 0.9352353%.

      Working on the assumption that only four sixths of 2017 figures should be taken into account, that gives a total of 2017 of 11,710.

      That gives an overall total of 81,075.

      On the basis of 813 cases, that is 1.0052544%.

      However as it has been announced that the scheme is being scrapped with effect from July 2017 it is expected that there will be far fewer, indeed virtually no new cases in May and June 2017, but of course the Dutch divorce rate has not dropped as a result.

      Thus I am satisfied that the statement that “fewer than one in 100 qualifying disputes” are actually being dealt with is correct.

      However I am happy to change that to “around one in 100 qualifying disputes.”

      Clearly not absolutely everyone regards it as a disaster – you do not do so – and therefore I accept that the word “unanimously” is misplaced and I have altered that phrase to “very widely.”

      I am not sure any purpose is served by us arguing about whether that makes my statement “utter rubbish” and I am more concerned about the substantive issues raised in my blog.

      I would be interested on what basis you say that the scheme is “almost universally and unreservedly applauded”.

      That is simply not borne out by the evidence.

      See for example Steve Hynes – New Law Journal – Digital Law crashes out … for now – 27 April 2017, itself quoting Corry van Zelland who previously worked for the Dutch organisation behind the product – the Hague Institute for the Internationalisation of Law and who works now for the Dutch Legal Aid Board.

      See also the Law Society Gazette – 20 June 2017.

      See also the actual speech of the Master of the Rolls given on 14 June 2017:

      “As model for the Online Solutions Court, it might be though that the failure of the Rechtwijzer does not all go well.”

      The word “failure” is the one used by the Master of the Rolls.

      At paragraph 50 of his speech the Master of the Rolls stresses that the Online Solutions Court will be fundamentally different from the failed Rechtwijzer, again referring to the Rechtwijzer as a failure involving individuals in the Netherlands rejecting online processes and “low user uptake of its consensual settlement mechanism” and repeats the point that that will not apply to the Online Solutions Court.

      The Master of the Rolls says:

      “As such the question of preference that undermined take-up in The Netherlands is unlikely to be replicated here.”

      I happen to disagree with the Master of the Rolls but I am at a loss to see how you have formed the view that the Rechtwijzer was “almost universally and unreservedly applauded” up until the announcement of its demise.

      I fully accept that there were very many of the usual suspects who dislike the whole concept of law, lawyers, the legal profession and virtually anyone who is actually passed some exams and they are the same people who praise artificial intelligence, McKenzie Friends and so on.

      Of course as soon as this scheme failed have distanced themselves from it.

      My central objections are to case officers and court administrators “exercising judicial functions under the supervision of the judiciary” and fully contested trials being dealt with other than by the parties attending court for an oral hearing.

      I am fully in support of online filing of pleadings, statements, and indeed everything else and have been a long term supporter of fully electronic filing with all “paper” work being dealt with in that way.

      My strong view, and I accept that I may be wrong, is that these concepts are being deliberately conflated so that the obvious sense and benefits of electronic and online filing are being extrapolated into online courts and judicial decisions by untrained and unqualified staff.

      That is, to use your term, utter rubbish.

      If I book a theatre seat online, I still want to go and see the play.

      If I book a football ticket online, I still want to go and see the match.

      If I book a plane ticket online, I still want to get on the plane and fly to my destination.

      Last, but very much not least, I quote from a piece posted on 31 March 2017 and headed “After the Rechtwijzer Energizer.”

      The author of that article said:

      “So that’s about 1% of all Dutch divorces…”

      As will be apparent from the above, I agree with that figure and I agree with that author.

      The author was one Richard Moorhead, so in answer to your statement:

      “I don’t know where you got your 1% figure from either – it will be interesting to hear,” the answer is you.

      Best wishes

      Kerry

      kerryunderwood

      June 23, 2017 at 3:36 pm

      • Thanks Kerry.

        You protest in volume but I see you may have changed the text as a result and defend your choice of the words ‘absolute disaster’ by quoting a much more measured critique by the MR.

        I take the view that it *was* near universally applauded [before it’s failures became public] just based on the number of pieces I read and presentations I have listened to where I heard it so applauded. Are all the examples of those saying it was a disaster post-revelation of the break off of the relationship with HiiL? Steve H I can imagine would have been consistently sceptical and the Gazette, well … it’s the Gazette. I think there are sensible, measured commentators who would argue otherwise than it being a disaster even now (cf Roger Smith’s blogs generally). And I think I am right in saying that the Dutch LAB are still using it though? (Not sure about that, would need to check – perhaps you should check if you are going to persist with the idea it is an absolute disaster).

        BTW you have not amended the text as you suggest I don’t think but I am not concerned enough to check it.

        I had indeed reached a figure of 1% (I am assuming you found this after writing the blog). There was also data buried in the Law Society Innovation report too if you want to take a look, which comes to a somewhat higher figure if I recall rightly (2%?). I have been the Rechtwiijzer folks come to a higher figure (3%, if memory serves, which it may not), in one of Roger Smith’s recent blogs, which was why I asked.

        Richard Moorhead

        June 23, 2017 at 4:34 pm

  2. Dear Kerry

    Please correct the mistake in this otherwise excellent message !

    How obvious is it that it is not the whole of the court to assist parties to manage the claim and reach a settlement, rather it is to hear and try the claims.

    Should be “the role of the Court “ ?

    Bernie Brandon

    Loyal subscriber Bath Somerset

    Bernie Brandon

    June 23, 2017 at 11:56 am

    • Dear Bernie
      Thank-you! You are of course right – been manic and so I dictated it and clearly did not check the final version properly :(.
      Now corrected – thank you for your kind comments and support.
      Kerry

      kerryunderwood

      June 23, 2017 at 12:36 pm

  3. and that day hell will freeze over and his magic money tree will shrivel and die  Brian Varney Legal Costs Consultant 10, Sherwood Close Ashford TN24 9PT DX 30201 Ashford (Kent) Tel.01233 650717 mobile 07770 661669 Email bavarney1@yahoo.co.uk (We do not use fax)

    From: Kerry Underwood To: bavarney1@yahoo.co.uk Sent: Friday, 23 June 2017, 11:19 Subject: [New post] MCKENZIE ONLINE JUDGES COMING SOON #yiv8900378948 a:hover {color:red;} #yiv8900378948 a { text-decoration:none;color:#0088cc;} #yiv8900378948 a.yiv8900378948primaryactionlink:link, #yiv8900378948 a.yiv8900378948primaryactionlink:visited {background-color:#2585B2;color:#fff;} #yiv8900378948 a.yiv8900378948primaryactionlink:hover, #yiv8900378948 a.yiv8900378948primaryactionlink:active {background-color:#11729E;color:#fff;} #yiv8900378948 WordPress.com | kerryunderwood posted: “Giving the Lord Slynn Memorial Lecture earlier this month the Master of the Rolls spoke about the proposed online court and admitted that the failed Rechtwijzer Dutch Scheme had been inspiration behind the proposals for an online court in England and Wale” | |

    Brian Varney

    June 23, 2017 at 1:00 pm

    • A week is a long time in politics eh Brian? Now we are wondering how big our majority will be. Not long ago someone was thinking the same…………

      Kerry

      kerryunderwood

      June 23, 2017 at 1:49 pm

  4. Thanks Richard

    Blog has been amended- have the day job to do as well. Not protesting in volume- just using evidence- including from you- to refute the suggestion that I was talking utter rubbish.

    Our readers can be the judges.

    Best
    Kerry

    kerryunderwood

    June 23, 2017 at 4:45 pm


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