Is it truly possible to establish a digital justice system that’s workable, fair to the parties and achieves justice?
As I write at the start of 2021, lockdown 3.0 has been announced.
Notwithstanding acute logistical issues and caring responsibilities for many, lawyers are expected to continue playing their part in the administration of justice. The pressure is on.
The Lord Chief Justice has acknowledged that the next few weeks will present difficulties in all jurisdictions, but the courts and tribunals must continue to function.
“Facilitating remote attendance of all or some of those involved in hearings is the default position,” he adds. In another words, the new ‘norm’ continues.
However, the dire situation is magnifying the problem of access to justice.
Let me illustrate: I’ve come across someone who had to disinstruct her solicitors in December because of what appears to be substandard service at best; and unethical conduct at worst.
She needs a new lawyer to take on her case (a 7-day remote trial is scheduled for January) but securing a lawyer has proved virtually impossible because of the Christmas break and the covid-19 situation.
Meanwhile, the previous firm has refused to release the file without thousands of pounds of payment for ‘work done’.
So what next? The court and the lawyers involved will have the technology to support what will be a lengthy remote hearing.
But what’s an unrepresented litigant with poor internet access to do?
There is now the additional reality that the full lockdown significantly restricts the ability to go somewhere that can offer access to the required technology.
A litigant with no representation, and without the digital capability to support their attendance at a multi-day hearing, cannot be said to be meaningfully participating.
Can we honestly call this fair justice?
Last year’s Civil Justice Council report on the impact of covid-19 measures on civil justice highlighted the problem.
Survey respondents pointed to an assumption that clients have internet access; the Official Solicitor pointed out that many vulnerable parties don’t have iPads, laptops or other electronic devices, which means no access to Zoom or Skype.
The right to a fair hearing is enshrined in law. Peter Jackson LJ has stressed a number of aspects to this, including the need for protection from actual unfairness and from the risk of unfairness; and that the administration of justice requires not only fairness but the appearance of fairness (Re C (Children)(Covid-19: Representation)  EWCA Civ 734).
In its follow-up consultation on remote family hearings last September, the Nuffield Family Justice Observatory said that professional respondents expressed concerns about whether proceedings were perceived as fair by parties in all cases.
The report also highlighted many technical problems that are still being encountered, with lay parties struggling with hardware, connectivity and the necessary tech skills.
Anecdotally, judges are doing a great job in trying to put litigants at ease before the hearing, but that cannot be a panacea to the range of issues that arise in remote during hearings.
Of course, it is not only the parties themselves who may struggle.
Lawyers and judges, not to forget all the other professionals involved in the justice system, have had to navigate and adapt to the switch to remote court hearings. It is universally accepted that remote hearings are mentally exhausting for all involved (who hasn’t used the phrase ‘Zoomed-out’ by now?).
The Law Society has applied consistent pressure on government to wake up to the urgent need for additional resources.
The cash committed – including £142m to speed up technological improvements and modernise court facilities – remains inadequate and more must be done if 2021 is to see improvement.
But crucially, the justice system needs to better recognise the serious problems faced by litigants who, perhaps because of circumstances beyond their control, feel let down by a system they believe has failed to deliver justice fairly.
Nicola Laver is the Editor of Solicitors Journal. She is a non-practising solicitor.