MASTER OF THE ROLLS: A PERIOD OF QUIET ON YOUR BEHALF WOULD BE WELCOMED

I set out below analyses, links and the text of recent speeches by the Master of Rolls.

This is not just entering the political arena: it is a wholesale attack on the rights of ordinary people and access to justice and is bound to force small firms like mine out of litigation and mean that many people will have no access to the legal system.

The Master of the Rolls frequently refers to the Official Injury Claim Portal, as though it is some sort of triumph. In fact, it has been an utter disaster and has seen claims drop by 50%, meaning that 50% of injured people can no longer claim compensation, which was itself reduced by 80% in relation to whiplash injuries.

I presume that is why he regards it as a success.

The Portals, designed for ordinary people to bring claims themselves, are incomprehensible, unworkable and a disgrace to a supposedly civilized society believing in the rule of law.

This attempt to exclude from the courts, all but the very wealthiest, must be stopped.

Once Russian Oligarchs, huge businesses, Senior Judges and politicians are happy to use chat boxes, ombuds people etc., rather than the courts and lawyers, maybe we will listen to them.

Let’s start now.

Let us have a short Act of Parliament prohibiting any claim valued at £10 million or more being heard by the courts. These claims use up a lot of time and resources. These people are rich anyway so it does not matter if their claims cannot be heard.

Let Amazon / Google / ChatBox / Ombuds people determine them.

The Master of the Rolls should learn from one of his most illustrious predecessors – Lord Denning – and sit in local courts as Lord Denning did and see the destruction that is being wreaked on this country by these policies.

Scrap all portals and re-open the County Courts. Scrap all National Business Money Online Damages Official Injury Courts and have matters dealt with in local courts.

MASTER OF THE ROLLS, LAWYERS, JUDGES AND NECESSARY MECHANISMS TO DEAL WITH ARTIFICIAL INTELLIGENCE

At the Law Society of Scotland’s Law and Technology Conference the Master of the Rolls, Sir Geoffrey Vos, considered the impact of artificial intelligence on legal services and dispute resolution.

He referred to a case where submissions prepared by a US lawyer using ChatGPT contained “bogus decisions with bogus quotes and bogus citations” – the errors were identified because the Judge checked the cited cases.

Observations included:

• Non-specialised artificial intelligence tools will not help professional lawyers as much as they think, but specialised legal artificial intelligence will be different.

• ChatGPT identifies its most valuable dispute resolution uses as drafting, document review, and predicting case outcomes to inform strategy and settlement negotiations.

• Clients are likely to press for use of large language models, checked by lawyers, if that is cheaper.

• Rules or professional codes of conduct might regulate use of large language models, and users’ responsibility. Rules committees and regulators will need to consider this as a matter of urgency.

• Artificial intelligence must be programmed to understand the full import of human questions, humans need to be “savvier” checking facts; programmers need to explain to artificial intelligence programmes what humans’ open textured questions, such as “Is this a real case?“, mean.

• To realise their full dispute resolution potential, large language models must be trained to understand principles upon which lawyers, courts and judges operate.

• Clients are likely to insist that all tools available are at least considered.

• Artificial intelligence will be used within the digital justice systems in England and Wales: for example, keeping users informed of the process.

• Artificial intelligence might eventually be used to take decisions, subject to necessary controls, notably transparency regarding judicial and “machine” decisions, plus a right of appeal to a human judge.

• For some commercial and compensation disputes, confidence in machine-made decisions may develop more quickly than many anticipate.

• As it recognises, ChatGPT’s accuracy depends on the quality of the data and the complexity of legal concepts. Combined with human judgement and expertise, it might be a valuable tool for predicting case outcomes.

However, legal decision-making involves other factors including strategic and ethical considerations, and client goals: a possible “lifeline” for the future of the legal profession.

Source: Courts and Tribunals Judiciary: Speech by the Master of the Rolls to the Law Society of Scotland (14 June 2023).

Master Of The Rolls’ Evidence To House Of Commons Justice Select Committee

The House of Commons Justice Select Committee has published a transcript of evidence given by the Master of the Rolls to the Committee on 6 June 2023.

Matters covered included:

• County Court, Damages Claims Pilot and Online Civil Money Claims.

The Master of the Rolls attributed the delays in the County Court to a lack of capacity at the district bench, particularly in London and the Southeast and highlighted measures taken including starting a virtual pilot using remote hearings to clear backlogs.

The Damages Claims Pilot and Online Civil Money Claims have led to a tripling in the speed between issue and directions and by the end of the Damages Claims Pilot, it will be available to litigants in person.

• Fixed Recoverable Costs.

While the Fixed Recoverable Costs rules will “change the landscape” of civil justice, the Master of the Rolls stated that this is a “good thing”, which should not affect access to justice, provided there are safeguards.

He forecast a reduction in interlocutory hearings as there will be less costs budgeting.

• The Solicitors Act 1974.

While it is time for a review of the Act, this would require “a lot of work”, including co-operation with the profession.

The Master of the Rolls reiterated his comments from Belsner v Cam Legal Services Ltd [2022] EWCA Civ 1387, that the distinction between contentious and non-contentious costs is not logical.

The  “online funnel” vision.

Two years after he first outlined his ‘funnel’ plan of online dispute resolution, he was able to assert its components, and the crucial governance mechanism, are beginning to take shape.

“Technology provides part, if not the entirety of the solution to many of the problems we face in our justice system,” the 98th Master of the Rolls told MPs.

 He set out a plan for a three-tier process.

Stage one is a universal ‘landing page’ in which anyone with a civil dispute would set out the bare bones of their matter.

This would offer basic legal advice and steer them to the most appropriate specialist online forum.

Examples might be Online Civil Money Claims, Official Injury Claim or the dispute resolution service for small and medium-sized companies being set up by a private sector joint venture.

“Only if the second tier fails, then will your data be transmitted via an application programming interface into the justice system.”

The presumption is that only a tiny proportion of claims would get that far – hence the ‘funnel’ analogy. In theory the public courts system would deal only with disputes of high value and/or exceptional complexity – plus, inevitably, those with parties emotionally determined to have their day in court regardless of cost.

What is groundbreaking about the funnel, Vos said, is its mix of public and private sector services and integration between the two. “There needs to be coherence between those that are resolved by the courts and those resolved by other means – it has never been done before.”

The committee is being established under the Judicial Review and Courts Act 2022. It will operate “very differently to existing rules committees”.

For a start, it will generate far fewer rules – the system itself will provide them.

 Rather than specifying which boxes to complete, the rules will be at a much higher level, for example “you must hear the submissions for each party.”

“You won’t need them in the way you need the White Book today because the system will tell you what to do.”

He stressed that, like all elements in the system, it will be designed for litigants in person:

“I can envisage having real legal advisers, not AI chatbots, giving advice to people who need it at the earliest possible stage.”

 “We must not lose sight of the fact that real people need real help.”

• Mediation.

Mediation will be integrated in the Master of the Rolls’ “online funnel” vision, leading to faster resolution of most disputes.

If mediation were mandatory, which he recognised is contentious, the Master of the Rolls expected that a larger number of cases would settle, fewer cases would need to be heard and delays would be reduced.

SPEECH BY THE MASTER OF THE ROLLS: DRIVING SYSTEM CHANGE AND ADDRESSING INJUSTICE

“1. It is an honour and a pleasure to have been invited to address this conference. Ombuds processes are a massively important and under-recognised part of the legal system in general and of dispute resolution in particular.

2. Since I became Master of the Rolls and Head of Civil Justice in January 2021, I have been trying my hardest to provide some coherence to the resolution of the many millions of small disputes that arise every year in England and Wales between citizens, between citizens and small businesses, between SMEs, and between all those and large businesses or the state. Cases that reach the court system are very much the exception rather than the rule. Yet, for many years, much in the world of dispute resolution has been viewed through the lens of court-based dispute resolution.

3. In talking about civil disputes, I include family cases and tribunal cases, whether employment tribunals or property tribunals that deal with cases between private parties or immigration and social security tribunal that deal with disputes between citizens and the state.

4. I am pleased to say that we are now on the brink of a revolution in dispute resolution. We are no longer fixated on court-based systems, but we are in the process of creating a truly holistic Digital Justice System. The statutory foundation for that system was enacted in sections 22-24 of the Judicial Review and Courts Act 2022. Those sections allow for the creation of an Online Procedure Rules Committee, the composition of which was announced last week. The OPRC will have oversight of the online court-based dispute resolution processes created by the HMCTS Reform Programme and the digital pre-action portals and other processes that resolve many thousands, if not millions, of disputes every year without the parties going anywhere near a court.

5. I am the first chair of the OPRC, and the other judicial members are the President of the Family Division and the Senior President of Tribunals. The three lay members announced last week are a solicitor, Brett Dixon, a tech expert, Gerard Boyers, and a representative of the advice sector, Sarah Stevens.

6. The vision of the future that lies behind the OPRC and the digital justice system for which it will provide the oversight and governance, is that anyone with an issue or dispute, individual or business, should be able, in this technological era, to go online to be directed to the dispute resolution process that is most appropriate for their problem. I see that as the first tier of a digital dispute resolution system. It will obviously need to offer early legal services and advice in appropriate cases. That is what the new Lord Chancellor calls: “ELSA”. There have been pilots in Middlesborough and Manchester. In many cases, the first tier will simply direct an employee with a problem to, for example, the ACAS site, and the financial services customer with a problem to the Financial Ombudsman Service and so on.

7. The second tier of the Digital Justice System is the pre-action dispute resolution services and portals which many of those here today have provided, without fanfare, for many years. Some are privately funded. Some are publicly funded. Some are statutory and some are industry backed. It is still not entirely clear to me how many non-court-based dispute resolution services are available in the UK. But I know there are many. And I know they deal with many thousands of cases. The Housing Ombudsman dealt with 26,771 complaints last year. The FOS received 279,146 complaints in 2021/2022. ACAS received 91,000 requests for individual dispute resolution services in the same year. The Legal Ombudsmen received 4,573 cases, and so on and so on.

8. In the field of personal injury, the Whiplash portal, more properly called the Official Injury Claims Portal, has dealt with some 501,451 claims since its inception in 2021, and the RTA portal was dealing with some 600,000 claims every year before that.

9. I am optimistic that an SME portal will shortly be created to resolve disputes between small and medium sized enterprises without the necessity for court process.

10. I want to be absolutely clear that nothing I am doing or that the OPRC will do is intended to make life more difficult for ombuds services. The objective is to provide a level of coherence, integration, and greater accessibility. Everyone who has an issue ought to be able to obtain access to appropriate dispute resolution services online. Moreover, one of the advantages of the digital environment is that it abrogates the need to recreate the data relating to each case again and again if it proceeds from one dispute resolution environment to another. It ought to be possible to transmit the data set created by the whiplash portal, for example, directly into the court-based Online Damages Claim process through an application programming interface or API.

11. The objective is to create an online funnel through which any dispute, large or small, can pass with the ambition of providing resolution at the earliest possible stage, at the lowest possible cost, and in the shortest possible time.

12. The economic and psychological costs of leaving disputes unresolved is great. Individuals are far less productive at work if they are preoccupied with a personal issue such as a family dispute, a housing issue, or an employment problem. There is a great economic prize to be won if we can expedite dispute resolution and integrate dispute resolution processes.

13. It is, of course, essential that a state funded court-based dispute resolution process, staffed by an independent judiciary, is available to all citizens to resolve all disputes. But that does not mean that every dispute should be required to go to court as a first option, where other cheaper and less time-consuming options are available. People are voting with their feet. They are using industry-funded ombuds processes to good effect. They are using privately funded mediation services before starting court proceedings and they are using the available pre-action portals in ever increasing numbers. The digital justice system and the OPRC that is responsible for it seek to provide the architectural coherence and integration that has long been lacking.

14. So where does the OPRC fit in to this Digital Justice System. I emphasise that the OPRC is new and has not yet even held its first meeting in its fully constituted form. That said, I see the OPRC as being quite different from the existing Civil Procedure Rules Committee, Family Procedure Rules Committee, and the Tribunals Procedure Rules Committee.

15. First, the OPRC will not simply be making rules. Rules are anyway different in the online space. It is not necessary to have a rule that says that a pre-action dispute resolution portal must ask each party their name and address, because the programme will require them to do so before they will be able to proceed. The rule-making process for the online court-based dispute resolution process will be more high-level and will dictate the standards that the dispute resolution processes governed by it must attain. It may, for example, have a rule saying that no decision must be made without both parties having had an opportunity to make submissions. In reality, though, the platforms on which online dispute resolution services sit will themselves provide much of the structure. We already see this with Online Civil Money Claims (OCMC) and Damages Claims Online that are services close to being able to provide end-to-end online civil court-based dispute resolution services. Some 90% of all civil money claims are now brought online, and more than 300,000 money claims have already been brought through OCMC.

16. Secondly, a big part of the OPRC’s activities will be to provide functional governance for the online platforms, making sure that the data created online is properly and appropriately handled and that the technological foundations of the processes are transparent and effective. By setting common technical standards, the digital development, which is already happening everywhere, can be coordinated.

17. Under section 24 of the Judicial Review and Courts Act 2022, the OPRC can provide governance for pre-action portals, in which I include the ombuds services provided so successfully in so many sectors. Many have asked me why Ombuds services would want to be any part of the Digital Justice System I have described. The answer is three-fold.

18. First, if ombuds processes can come within the framework of the Digital Justice System, it provides the coherence and integration that has, thus far, been lacking within the various disparate parts of the entire dispute resolution process. As I have already intimated, I have for long thought that applying the standards of court-based commercial dispute resolution in the Business and Property Courts to every dispute, making the processes far too cumbersome and unwieldy. There are literally only 3,000 odd cases per annum in the Rolls Building and yet we apply those standards to the millions of small disputes that arise in tribunals and courts and that don’t even get anywhere near a court. It is truly a case of the tail wagging the dog. Instead, we need to look holistically at the vast bulk of disputes that are resolved by multifarious processes, by ADR, by online portals, by ombuds people, by mediation and even by eBay and Amazon.

19. Secondly, bringing ombuds processes within the framework of the Digital Justice System improves access to justice, because it increases the chances of individuals with a sectoral complaint finding the appropriate process to have that complaint resolved.

20. Thirdly, it will allow the ombuds processes that are currently separate and governed by different rules and different procedures to become more joined up, both technically and in data terms. They will not be harmonised in any sense, but there will be an OPRC framework that will ensure they follow a fair and transparent procedure. Moreover, if an ombuds process fails to resolve a complaint to the satisfaction of the parties, it will be possible to transmit the data directly by API into the court-based part of the Digital Justice System.

Conclusions

21. It is incredibly important that our Digital Justice System is of the same, if not better, quality than our existing analogue dispute resolution processes. But we should not assume, as some do, that digitisation leads to less reliable and less just outcomes or that it excludes people altogether from the ability to vindicate legal rights. It is an essential principle of offering justice digitally that those who are unable to access the internet, or any digital offering, are provided with the same services in an accessible fashion. But that does not mean that we should deprive the vast majority of our digitally enabled citizens of dispute resolution processes that will be quicker and more cost effective for them.

22. In my view, sectoral ombuds processes are an essential part of our justice system and should be recognised and treated as such. The creation of a holistic Digital Justice System gives us the opportunity to deliver on that objective.

23. You may think that much of what I have been talking about passes like ships in the night alongside the nitty gritty of what your ombuds processes aim to achieve and are actually achieving. I realise that very few cases move directly from an ombuds process into the court system, whether digitally or at all. But that does not mean that the coherence of which I have been speaking is not a valuable prize. Many people with real problems are excluded from our current dispute resolution landscape because it is simply too hard to navigate. We owe it to these people to do everything we collectively can to produce an integrated and intuitive digital dispute resolution environment.

24. I look forward to answering any questions that you may have.”