Safeguarding Access to Justice in the Age of the Online Court
| Published date | 01 January 2022 |
| Author | Catrina Denvir,Amanda Darshini Selvarajah |
| Date | 01 January 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12670 |
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Modern Law Review
DOI:10.1111/1468-2230.12670
Safeguarding Access to Justice in the Age of the
Online Court
Catrina Denvir∗and Amanda Darshini Selvarajah†
In 2016 Her Majesty’s Courts and Tribunals Service embarked on a signicant modernisation
programme with a view to developing online courts.In pursuit of this ambition the Courts and
Tribunals (Online Procedure)Bill seeks to introduce new procedural rules to govern the online
jurisdiction, giving the Lord Chancellor and an Online Procedure Rule Committee the power
to mandate which proceedings will be conducted online and what assistance will be provided
to users. In this study we analyse survey data and case decisions to highlight the importance of
channel plurality and digital support in light of the shift to online courts. Our ndings identify
the groups most at risk of digital exclusion, and the expectations the judiciary sets in relation to
internet access, capability, and the design of online systems.We conclude by detailing what our
ndings mean for safeguarding access to justice in the digital age.
INTRODUCTION
It is widely recognised that open access to courts and tribunals plays a critical
role in safeguarding the rule of law and ensuring access to justice.This has been
conrmed judicially in a number of instances and at the highest levels with Lord
Diplock classifying it as a constitutional feature,1the Supreme Court declaring
in 2010 that ‘[a]ccess to a court to protect one’s rights is the foundation of the
rule of law’,2and the Court of Appeal determining in 2013 that ‘the constitu-
tional right of access to the courts should … be understood as a duty,owed by
the State,not to place obstacles in the way of access to justice’.3
∗Associate Professor, Departmentof BusinessLaw andTaxation, Monash BusinessSchool, Monash
University, MelbourneAustralia.
†PhD Candidate, Departmentof BusinessLawand Taxation,MonashBusinessSchool, Monash Uni-
versity, MelbourneAustralia.
The authors would like to thank the anonymous reviewers for their close reading and helpful com-
ments on the dierent versions of this manuscript
1‘Every civilised system of government requires that the state should make available to all its citi-
zens a means for the just and peaceful settlement of disputes between them as to their respective
legal rights. The means providedare courts of justice to which every citizen has a constitutional
rightofaccess.’Bremer Vulkan Schibau und Maschinenfabrik vSouth India Shipping Corporation Ltd
2HM Treasury vAhmed & Ors [2010] UKSC 2, [2010]2 AC534 at[146] per Lord Phillips SCJ.
3Children’s Rights Alliance for England vSecretary of State for Justice [2013] EWCA Civ34, [2013]
HRLR 17 at [38] per Laws LJ.
© 2021 The Authors. The Modern Law Review© 2021 The Moder n Law ReviewLimited.(2022) 85(1) MLR25–68
Safeguarding Access to Justice in the Age of the Online Court
Although it remains the case that in England and Wales most individuals re-
solve justiciable problems without recourse to the formal legal system,4access
to courts and tribunals is central to the resolution of civil justice problems,5
in part because the inuence of authoritative judicial determination spans be-
yond the individual dispute level. As Genn has observed,‘[a]uthoritative judicial
determination has a critical public function in common-law systems, creating
the framework or the “shadow”in which the settlement of disputes can be
achieved’.6Hence,the outcomes that emanate from the formal justice system,
when coupled with the ‘coercive power of the state’,play a key role in estab-
lishing the normative expectations that govern the behaviour and negotiations
that occur in the informal dispute resolution setting. The court’s role as arbiter
and enforcer of legal outcomes operates to give substance to individual and col-
lective rights.7Whilst courts may remain peripheral to the experience of civil
justice for many individuals,their operation and existence is of fundamental
importance for individual civil justice outcomes and for society at large.
Against this backdrop,recent years have seen heightened concern regarding
the eciency of the justice system and the capacity of the court and tribunal
system to withstand an increasing caseload.In response,in September 2016 the
Lord Chancellor,the Lord Chief Justice and the Senior President of Tribunals
released an ambitious joint vision for transformation.8Predicated on the belief
that ‘the introduction of digital services will help strip away the complexity and
confusion that can get in the way of accessing our courts and tribunals system’,
this £1 billion transformation programme lays the foundation for the intro-
duction of online courts and tribunals across the civil, family and administrative
jurisdictions.9
In England and Wales, proposed plans to introduce online courts have been
circulating for over a decade, with video plea and directions hearings for Crown
Courtmatters, andapossessionclaimonlinescheme (PCOL)toenablein-
dividuals to instigate possession proceedings for residential properties,piloted
4 P.Pleasence and others, ‘English and Welsh Civil and Social Justice Panel Survey:Results
of Wave I’ Legal ServicesCommission, 2010athttp://doc.ukdataservice.ac.uk/doc/7643/
mrdoc/pdf/7643_csjps_wave_one_report.pdf(last accessed 20 December 2020); P. Pleasence
and others, ‘Civil Justice in England and Wales 2009:Report of the 2006-09 English
and Welsh Civil and Social Justice Survey’ (London:Legal Services Commission 2010); P.
Pleasence, N.J. Balmer and C. Denvir, ‘How People UnderstandandInteractwith theLaw’
PPSR, 2015 athttps://www.thelegaleducationfoundation.org/wp-content/uploads/2015/12/
HPUIL_report.pdf(last accessed 18 December 2020).
5 H. Genn, Judging Civil Justice (Cambridge: Cambridge University Press, 2010)114; R.H.
Mnookin and L. Kornhauser,‘Bargaining in the Shadow of the Law:The Case of Divorce’
(1979) 88 Yale LJ 950.
6H. Genn, ‘WhatIs CivilJusticeFor? Reform, ADR, andAccess toJustice’ (2012)24Yale Journal
ofLaw&theHumanities397, 398.
7ibid.
8Ministr y ofJustice,Transforming Our Courts and Tribunals – Summary of Reforms and Consultation
Paper 2016 at https://consult.justice.gov.uk/digital-communications/transforming-our-courts-
and-tribunals/supporting_documents/consultationpaper.pdf(last accessed 27 February 2018).
9HM Courts and Tribunals Service, ‘Written Evidence from HM Courts and Tribunals Service
(CTS0064)’ House ofCommons, 2019, 2 athttp://data.parliament.uk/writtenevidence/
committeeevidence.svc/evidencedocument/justice-committee/hmcts-court-and-tribunal-
reforms/written/97827.html (last accessed 13 June 2019).
26 © 2021 The Authors. The Modern Law Review© 2021 The Moder n Law ReviewLimited.
(2022) 85(1) MLR 25–68
Catrina Denvir and Amanda Darshini Selvarajah
in 2006.10 This was followed in 2007 by the launch of Money Claim Online
(MCOL) which enabled applicants to initiate proceedings in respect of low
value money disputes.But whilst England and Wales exhibited early mover sta-
tus in digitising justice when compared to other jurisdictions, publicly funded
Online Dispute Resolution (ODR) systems in British Columbia,11 Utah,12
Ohio and the Netherlands13 have exhibited a much stronger degree of end-
to-end digitisation than that presently achieved by PCOL and MCOL.14
Those investigating the benets of court digitisation have observed the po-
tential for online courts to improve access to justice and to address many of
the problemsassociatedwithindividuals’ engagementwithadjudicative pro-
cesses. This includes the challenges associated with physically accessing courts,
as well as a range of cognitive barriers.15 Existing socio-legal research makes
10Legal Ser vices Commission,‘Innovation in the Community Legal Service’ (London:Legal Ser-
vices Commission, 2005); LegalServices Commission, ‘AnnualReport2007-08’(London: Legal
Services Commission, 2008); LegalServicesCommission, ‘MakingLegal Rightsa Reality: The
Legal Service Commission’s Strategy for the Community Legal Service 2006-2011’(London:
Legal Services Commission, 2006);Department of Constitutional Aairs, ‘Departmental Report
05/06’ (London: DCA, 2006).
11S. Salterand D.Thompson, ‘Public-CentredCivil Justice Redesign: ACase Studyof theBr itish
Columbia CivilResolutionTribunal’ (2016-2017) 3McGill Journal of Dispute Resolution 113;
S. Salter, ‘Online Dispute Resolution and Justice System Integration:British Columbia’s Civil
Resolution’ (2017) 34Windsor Yearbook of Access to Justice 112.
12 D. Himonas, ‘Utah’s Online DisputeResolutionProgram’ (2018) 122Dickinson Law Re-
view 875; B. Ambrogi, ‘Utah CourtsBeginUniqueODRPilotforSmallClaimsCases
Tomorrow’ LawSitesBlog 4 September 2018 at https://www.lawsitesblog.com/2018/09/
utah-courts-begin-unique-odr-pilot-small-claims-cases-tomorrow.html (last accessed 12 March
2019).
13HiiL, ‘ODRand theCour ts: The Promiseof100% Accessto Justice?’ 2016 athttps://www.hiil.
org/wp-content/uploads/2018/09/Online-Dispute-Resolution-Trend-Report.pdf (last ac-
cessed 23 February 2018).
14 For acomprehensive overview, see K. Palmgren, ‘ChurchillFellowship Report: Explore
the Use of Online Dispute Resolution to Resolve Civil Disputes:How to Best Integrate
an Online Court into the Victorian Public Justice System’ Winston Churchill Memorial
Trust,2018at https://www.churchilltrust.com.au/media/fellows/Palmgren_K_2017_Use_of_
online_dispute_resolution_to_resolve_civil_disputes.pdf (last accessed 12 March 2019).
15 O. Rabinovich and E. Katsh,‘The New New Courts’ (2017) 67 Am U L Rev 165;
H. Genn,‘Online Courts and the Future of Justice’Birkenhead Lecture,University
College London, 2017at https://www.ucl.ac.uk/laws/sites/laws/les/birkenhead_lecture_
2017_professor_dame_hazel_genn_nal_version.pdf(lastaccessed28 February 2018); E.
Rowden and others, ‘Gateways to Justice:Design and Operational Guidelines for Re-
mote ParticipationinCourt Proceedings’ 2013 athttps://cour tofthefuture.org/publications/
gateways-to-justice-guidelines-for-remote-participation-in-court/ (last accessed 17 Novem-
ber 2020); D. Tait and V. Tay, ‘VirtualCourtStudy: ReportofaPilotTest 2018’ 2018
at https://courtofthefuture.org/wp-content/uploads/2019/10/Virtual-Court-Study-Pilot.pdf
(last accessed17November 2020); Salter, n 11above; Salter andThompson, n 11above;
Civil Justice Council Online Dispute Resolution Advisory Group,‘Online Dispute Resolu-
tion for Low Value Civil Claims’ Civil Justice Council, 2015 at http://www.judiciary.gov.uk/
wp-content/uploads/2015/02/Online-Dispute-Resolution-Final-Web-Version1.pdf(last ac-
cessed 2March2018); A. Sela, ‘StreamliningJustice: HowOnlineCourts CanResolve
the Challenges of Pro Se Litigation’ 1 Cornell Journal of Law & Public Policy 331; W.
Teeder, L. Mulcahy andE. Rowden, ‘Virtual CourtroomExperiment: DataReport’ JUS-
TICE, 2020 athttps://justice.org.uk/wp-content/uploads/2020/10/FINAL-JUSTICE-III_
Exploring-the-case-for-Virtual-Jury-Trials-during-the-COVID.pdf (last accessed 17 Novem-
ber 2020).
© 2021 The Authors. The Modern Law Review© 2021 The Moder n Law ReviewLimited.
(2022) 85(1) MLR 25–6827
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