With the launch of the Online Procedure Rule Committee in June, the digitisation of civil, family and tribunal cases continues apace. But what about the part of the justice system that deals with high-value commercial disputes, the Business and Property Courts (BPC)? So far, little attention has been paid to how these Rolls Building courts will need to evolve to take part in the digital revolution. But that changed at the start of this month, when the Master of the Rolls Sir Geoffrey Vos used a speech marking the 150th anniversary of the Technology & Construction Court to examine what digitisation will mean for the BPC.
In a very interesting speech, Vos said it was ‘inevitable’ that all civil, family and tribunal (CFT) litigation will be undertaken through an online system; and he noted that HMCTS’s ongoing reform programme has only created as two online dispute resolution platforms – the common platform for crime, and the CFT platform for CFT cases.
Vos observed that lawyers in different types of litigation will often insist that their type of litigation requires specialist online systems. But in fact, he asserted, ‘all litigation follows a simple intuitive model that lends itself to digitisation’.
Vos explained: ‘One side puts forward some fact pattern and a claim for some specific relief. In many “small” cases, both the facts alleged and the relief claimed follow a familiar oft repeated pattern – whether we are talking about employment claims, private family claims, public family claims, possession claims, damages claims, personal injury claims or property disrepair claims.
‘The opposing party then wants to respond with its factual contentions and possibly with a cross claim for relief. In some cases, there are multiple parties and interests, but each has some facts to proffer and sometimes a claim for relief to make. In short, there is nothing new under the sun. The specific kind of relief that a party seeks is not a reason why an automated system cannot be used. If the relief sought is not suggested by the system, free text can be added explaining what unusually is sought.’
Vos then noted that BPC cases currently involve ten different lists and courts. ‘But all the cases in all these lists follow the same pattern that I have described, facts and relief claimed, followed, by response, facts and relief by opposing parties,’ he said.
‘What makes B&PC cases more complex is the identification of the real issues that require determination. We use cumbersome processes to achieve that essential objective, often creating thousands of pages of pleadings and witness statements before managing to identify and address what are often distilled down into a few central legal and factual questions that truly divide the parties.’
The Master of Rolls therefore insisted that the BPC must be ‘proactive’ in creating a ‘properly digitised dispute resolution platform’. He said the courts should ‘lead the revolution in digital justice for commercial cases in courts and even in commercial arbitration’.
The much-loved CE-file system is not enough, Vos said, because while it facilitates digital filing, it does not allow for the end-to-end online case management needed. Vos wants to see online case management, online orders, online hearing bundles and ultimately online applications and enforcement.
Meanwhile digitisation of the BPC will also involve making maximum use of artificial technology and ‘smart systems’, to reduce unnecessary costs for users, and to squeeze delays out of the dispute resolution process. He said AI can help process the mass of data that BPC cases create; it can help identify the issues to be determined; and it can even suggest solutions to those issues, whether in the context of mediation or otherwise.
Vos also noted that the nature of BPC disputes themselves will change in future. He said: ‘We will be resolving disputes about digital assets and smart contracts and distributed ledger technology, not just about physical construction projects.
‘We will be determining responsibility for error in the context of automated rather than human decision-making, where liability will be apportioned between programmers and technology producers, rather than between architects, construction companies and structural engineers. The cars, trains and planes will be driven by machines and liability for the accidents that occur will present new complex problems not contemplated in the analogue world.
‘Now that Parliament has passed the Electronic Trade Documents Act 2023, we can expect to see bills of lading and bills of exchange and all other trade documents in digital form, simplifying international trade and reducing the scope for error and dispute. The use of electronic trade documentation will speed forward the adoption of digital payment mechanisms and blockchain.’
So it is clear that the digital revolution already begun elsewhere in the justice system will also be heading to the BPC – though not, Vos insists, at the expense of justice.
November 17, 2023
Insights
