A Brief History of Civil Litigation Technology in England and Wales

In England and Wales, there has been strong interest in the use of IT in support of civil litigation at least since the Society for Computers and Law was founded - on 11 ^th December 1973. Although a handful of pioneers had worked in the field prior to that date, it was only thereafter, with a formal body in place, that it was possible for English lawyers, judges and officials to work together in a systematic and sustained way in assessing the actual and likely impact of court-room and litigation support technologies.

After a decade of experimentation and modest progress, the next milestone was the establishment in 1985 by Lord Mackay (then the Lord Chancellor) of ITAC, the Information Technology and Courts Committee. ITAC was inspired and then chaired for the first eleven years or so by Lord Justice Neill. The chair then passed to the current holder, Lord Saville (who also chairs the Judicial Technology Group in England, which focuses on the short and medium term IT needs of judges). Strong leadership from top judges is and always has been crucial for securing support for IT in the Justice System.

Still very active today, the purpose of ITAC has always been to provide a forum at which a very wide range of participants in the justice system (civil and criminal) could come together and exchange news about their respective investments in IT and their plans for the future. Although ITAC has never had executive powers, it remains an invaluable body, whose very existence encourages collaboration and compatibility across the civil justice system – around the ITAC table, solicitors are represented by The Law Society and barristers by the Bar Council, while they are joined by judges representing all levels of courts and senior officials from numerous government bodies, including the Lord Chancellor’s Department, the Court Service and the Legal Aid Board.

In the late 1980s and early 1990s, one part of the civil justice system that always came to ITAC with exciting news of innovation was the Official Referees Courts (now The Technology and Construction Court). It was in this court that much of the speculation about civil litigation technology became reality. The early success in these courts is a case study worth recounting. In 1991, The Official Referees Solicitors' Association (ORSA) set up an IT sub-committee to establish some standards for the use of litigation support systems (document management systems) in the courts of the Official Referees (judges in England who specialise in technical disputes, largely in the construction, engineering and IT industries). While these courts had frequently been facing huge document loads which were ideal for litigation support, law firms had been tending to argue with one another over the selection of systems, with each boasting unrivalled merit for their own preferred packages. The sub-committee, with representatives from a number of major litigation practices, sought to cut through these debates and wrote The ORSA Protocol which laid out standard formats for various aspects of litigation support. Although it was in no sense binding, a number of the judges strongly encouraged its usage, most solicitors accepted its recommendations and it motivated those who were previously unaware of litigation support to take it far more seriously. [3]

Also in the Official Referees Courts, just after the ORSA Protocol was published, an important experiment was conducted in relation to what has become one of the most successful uses of IT in the English courts – computer-assisted transcription (CAT). Under the auspices of the Society of Computers and Law, a short study was commissioned, which sought to explore the impact of this technology. Through CAT, the words spoken in the courtroom as captured by the keystrokes of stenographers are converted into text that appears almost instantaneously on the judge's monitor. Additionally, there is a facility to annotate text as it appears. The original study suggested [4] that the use of this technology could reduce the length of hearings, a finding supported by later projects and by the widespread anecdotal evidence of judges who have used such systems.

Elsewhere in the civil justice system at that same time, there was also some acceptance and exploitation of the same techniques and technologies that had been used in the Official Referees Courts. Some larger law firms and technologically enthused barristers began to work with litigation support technologies (inspired often by their counterparts in the USA), while judicial technology received a boost in 1992 with the launch of the JUDITH (Judicial IT Help) pilot project – the Lord Chancellor’s Department provided the funding for the provision of computers and training to 25 judges. [5] The JUDITH experience valuably laid the foundations for the gradual adoption of IT by the English Judiciary (there are just over 1000 judges in England, of whom about half are IT users as at the end of 1998).

Nonetheless, although there were some law firms, barristers and judges embracing IT in the early 1990s, the general uptake of the technology across the civil justice system was neither rapid nor enthusiastic. Most acknowledged (often with some reluctance) that it was in some sense inevitable that IT might at some time come to pervade the lives of everyone involved with civil litigation. No-one knew that that time would come as soon as 1994.

Lord Woolf’s Reforms and IT

In March 1994, the Lord Chancellor, Lord Mackay, appointed Lord Woolf (at that time a Lord of Appeal in Ordinary in the House of Lords; now the Master of the Rolls) to review the rules and procedures of the civil courts in England and Wales. The aims of his review were, in summary: to improve access to justice; to reduce the cost of litigation; and to reduce the complexity of the rules and terminology. Lord Woolf’s review became known as the Access to Justice Inquiry. In June 1995, he produced an Interim Report. [6] In July 1996, he published his Final Report [7] together with a set of draft rules, proposing a unified body of rules to replace the Rules of Supreme Court and County Court Rules.

Lord Woolf proposed a radically new landscape for civil litigation. In the new world he advocated, he suggested civil litigation should be: avoided wherever possible; less adversarial and more co-operative; less complex; more certain with shorter time scales; and more affordable, predictable and proportionate. He recommended that parties should be placed on more equal footing (financially); that there should be a clearer division of judicial and administrative responsibilities; that the courts and judges should be more litigant-oriented; that there should be more effective deployment of judges; and that the civil justice system should be more responsive to litigants’ needs.

When the Labour Party came to power in England in May 1997, the new Lord Chancellor, Lord Irvine, invited Sir Peter Middleton to review Lord Woolf’s recommendation alongside other proposals for the reform of the Legal Aid system. [8] The new government’s general approach is now captured in a White Paper, published in December 1998, entitled ”Modernising Justice”. [9] In summary, the first phase of the civil justice reforms, as proposed by Lord Woolf, is to begin on 26 ^th April 1999 and these will include the coming into force of the new Civil Procedure Rules, signed by the Lord Chancellor on 10 ^th December 1998.

And so, the most fundamental reforms to the English civil justice system for centuries, as proposed by Lord Woolf, are to be taken ahead. For current purposes, it is vital to know that the introduction of new and improved information technologies were central to Lord Woolf’s main recommendations. IT is now a key part of the civil reform process.

Taking his interim and final reports together, Lord Woolf made a wide range of recommendations in relation to IT. [10] Most fundamentally, Lord Woolf proposed the introduction and use of what are often known as ”case management systems”. Before detailing the proposals themselves, it should be said that there has been some considerable confusion over the very term ”case management system”. In an attempt to clarify the issue, it has been found helpful in England to recognise that there are at least five categories of system, each of which can meaningfully (but unhelpfully) be called case management systems. Each, in fact, is best regarded a sub-system of the next generation of court systems:

Absolutely fundamental to the Woolf reforms are two quite different categories of case management system. First, for the ”fast-track” (for claims up to £15 000 in value, other than small claims), it will be vital that the Court Service has efficient, reliable and effective ways of monitoring and administering all those cases that are following fixed timetables. In terms of the classification above, this will require first rate case administration systems.

Secondly, it is central to Lord Woolf’s new landscape that judges are more proactive in the management and progression of cases on the ”multi-track” (broadly, cases worth more than £15 000). In this respect, a range of technologies are envisaged for direct use by judges in support of their new case management responsibilities, largely on the multi-track. In the language of above, what is needed here are judicial case management systems. This is a rather radical new departure and worthy of special attention in this report.

Lord Woolf recommended four broad categories of judicial case management system:

1. case tracking systems - producing daily reminders, progress reports, lists of outstanding tasks and notices of who has responsibilities for further actions, thus supporting judges in supervising, monitoring and controlling their cases from start to finish;
2. case planning systems - simple, PC-based, project management software to enable judges to generate their own plans/charts for cases, depicting time scales, key events and activities;
3. telephone and video conferencing - as important tools for judges in maintaining the progress of cases and keeping in direct contact with parties where formal meetings would be impractical; and
4. document retrieval systems - to allow judges to gain access to documents relating to the individual cases on which they are working: including full case histories, pleadings, affidavits, orders and document bundles for example; and to be able to retrieve these, either as images or as searchable text, from some central location.

More generally, he stressed that there must also be coherent programmes for training the judges in IT and adequate technical support in place as well, for he recognised that new judicial users would inevitably be less comfortable with the technologies than the pioneers.

These recommendations on judicial case management technology raise a fascinating range of further issues.

In the first instance, as stressed above, it must always be borne in mind that there are these different kinds of interrelated case management systems, such that judicial case management systems are not separate systems. An emerging objective is to move towards unified court information systems across the country that support all five case management applications noted above. Case management systems for judges will not, therefore, be separate and distinct applications. Instead, they will draw on much of the same information that is needed for judicial case management support systems and for non-judicial case management systems. It is perhaps best to regard the English court information system of the future as one single system, with a range of different users; and judges will be one category of user with their own specific requirements.

Early thinking suggests that case tracking will be the priority for judges in the short term. However, it is vital to bear in mind that we are currently at the beginning of an evolutionary path which will lead in due course to an inevitably highly automated court system, under which the administration of cases will flow from start to finish in a largely automated environment, with human (largely judicial) intervention only for judicial decision-making and management decision-making. Judges involved with analysing requirements are therefore being encouraged to regard their current work as being the first building blocks towards such fully integrated case flow management systems.

Consistent with the spirit of the reforms which seek to simplify, unify and rationalise the civil justice system, work on systems today is seeking to reflect the objective of developing court information systems which, insofar as possible, are common across all civil courts in England. To this end, at this stage, the underlying database technology should be the same across all courts and the ”front-end” for all judicial users should be similar in design and content. Inevitably, different courts and specialist jurisdictions will have some different requirements but there should be a strong common element across all modules of the unified system.

The emphasis of this part of the report is on the multi-track. While IT is absolutely crucial on the fast track, the case administration technology which will be so vital there must be able to operate without regular consultation or use by judges themselves. Failure to meet deadlines on the fast-track must automatically trigger appropriate action. Court staff will enter data regularly and the systems should be designed to monitor progress and initiate activity. In contrast, to manage cases effectively on the multi-track, judges will need to have direct access to systems themselves (or to the output of systems as used by the court staff ).

Given that not all judges will be willing or able to use any new systems, there seems to be general agreement that there must be parallel systems (IT and paper-based systems) for judicial case management for many years to come, to accommodate non-users of technology. It is a moot question of policy whether a target date should set for all (or at least the overwhelming majority of) judges to be direct users of judicial case management systems. What is especially encouraging, in any event, is that the current government seems willing to supply equipment, applications and training to any judge who wants the new technology.

And yet, it will not all be down to judges. The benefits of a managed system will not be realised simply by grafting judicial case management on top of the current organisational infrastructure (court staff with their existing roles and responsibilities). Given that some judges will use the systems directly while others will not and that some will be more active case managers than others, it is clear that court staff will play a crucial and new role in working alongside judges who are managing the flow of their cases.

Much further thinking needs to be done here but there are strong arguments in favour or re-orientating the work of court staff and adopting a ”team-based” approach.

Central to the operation of the civil justice system under the reforms will be the creation of electronic files , which can flow quickly and cheaply through the system. Once set up in the first instance, perhaps by court staff, such a file should contain and record information about each particular case. Eventually, all the documents relating to each case will also be attached to the file. At any time, the file is available, under strict access controls, in electronic form, to authorised users – as an accurate, complete and up-to-date record. The Woolf reforms point, therefore, to the need for an electronic filing system but this has not yet been specified in any detail.

As for the implementation of the new technologies, this has been the subject of some minor controversy. Some of the press has noted that the IT which is so vital for the reforms will not be available in April 1999 and so, it has been argued, the very future of the reforms is at risk.

In fact, there has been some confusion here over the readiness of the fast-track as opposed to the multi-track technologies. Generally, the fast-track technology can be expected to be ready before the range of judicial technologies; and, in any event, the latter will not come as one monolithic system but should be phased in over a number of years. Nonetheless, it is true that the new systems for neither will be completed by April 1999 (although interim systems will be running).

Yet, no-one closely involved with the IT for Woolf ever believed that any of the serious technology would be ready by then. The projects involved are relatively complex and take time. A robust view is that it is right not to wait for the IT to start the reform process. Almost all major IT projects are late; and few systems meet all users’ requirements in their first versions. Decision-makers would rightly have been nervous about the start date for the reform being wholly dependent on IT. Such pressure would inevitably have led to corners being cut (for example, insufficient acceptance testing and training).

When the IT is introduced over the next few years, there is cause to be optimistic it will bring huge efficiencies and productivity gains.

As for whether the fast-track can work without IT to support its administration, the general understanding is that the Court Service believe that they can put sufficient human resource on the job until the technology is up and running. Although this may look rather antiquated (60 extra administrators), it is probably preferable to waiting for the IT to be in place.

As for the multi-track in absence of judicial case management systems, it is regrettable that the judges will not at the outset have advanced tools at their disposal to help tackle their new responsibilities; but it is by no means fatal. This can be said with confidence because it was always known that some judges would not be using IT in any event; and so that there would have to have parallel (paper and IT-based systems) in place at the very least.

As for the management of the introduction of the new technologies, this is very much a joint effort, led by the Head of Civil Justice, Sir Richard Scott, working closely with both the Lord Chancellor’s Department and with the Court Service. [11] Two further factors bode well. The first is that the newly appointed Chief Executive of the Court Service, Ian Magee, has a background in technology and IT management and is already personally involved in many of the IT initiatives. Secondly, the Court Service and the English Judiciary now have a very strong working relationship, in no small measure due to the Head of the Information Services Division of Court Service, Ian Hyams, who has put considerable effort into gaining the confidence of the judges (who are a very special kind of user group) especially through the launch of the ”Courtroom of the Future Project”. [12]

IT and the Review of the Court of Appeal (Civil Division)

It should not be thought that the computerisation of the civil justice system ends with Lord Woolf’s recommendations on IT. On the contrary, in many ways the Woolf reforms can be regarded as the starting point, as laying the foundations for further investment and development. Two initiatives support this proposition. The first is the work of the Civil Justice IT Strategy Development Group (discussed in the final section of this report). The second, the subject of this section, was a review of the Court of Appeal (Civil Division), which was published in September 1997. [13]

In late 1996, Sir Jeffery Bowman was asked by Lord Chancellor (Lord Mackay) to carry out a comprehensive review of the Civil Division of the Court of Appeal. The context of this review was concern over the increasing number of applications and appeals and consequent delays in the hearing of appeals in England.

The recommendations of the Bowman Report were intended to ensure that the Civil Division dealt with cases of appropriate weight for a Court consisting of senior and very experienced judges; to improve the way the Court worked so that it could deal with its caseload more quickly; and to achieve better access to justice.

Once again, a central role was identified for IT. [14] To manage the Court’s workload more effectively and to be able to evaluate its performance more easily, the development of management information systems was recommended. More fundamentally for the work of the Court itself, it was proposed that judicial case management systems be introduced to support the broader recommendation of the report that case management techniques (as originally introduced to the English legal system in Lord Woolf’s Access to Justice reports) be adopted within the Court of Appeal. In particular, there were recommendations for the introduction of case tracking systems, case planning systems, telephone and video conferencing systems, and document retrieval systems.

Much of the chapter on IT focused on the systems for the judges. Especially interesting are the results of a survey which was conducted during the review ”to determine the disposition of the Lords Justices towards IT”. It transpired that (in early 1997) more than half of the Lords Justices already used IT in the course of their work (one-third had been using IT for seven years or more). The great majority of the remainder expressed a willingness and enthusiasm to learn. This gave Sir Jeffery’s team confidence to recommend ”an ambitious programme” for the introduction of a substantial IT infrastructure (internal network linked to other court systems, Internet access, and video conferencing) and a wide range of applications for the judges – electronic communications, document creation, document management, external information systems (on the Internet and on CD) and internal information systems (a Court of Appeal Intranet).

In all, the report anticipated that greater usage of IT in the Civil Division of the Court of Appeal would result in: improved usage of the Lords Justices’ time; greater productivity; greater consistency of approach; compatibility between the Lords Justices and other parts of the Justice System; improved internal communication; new and improved methods of communicating with parties and their legal representatives; and an environment which would support case management.

It is understood that the Lord Chancellor, Lord Irvine, supports most of the general recommendations of the Bowman Report. Indeed, some are articulated now as government policy in the White Paper, ”Modernising Justice”. [15] In relation to the technology, as a matter of fact, planning has already begun for much of the IT that was advocated in the Bowman Report. This is under the able stewardship of Lord Justice Brooke (the President of the Society for Computers and Law).

The success of the introduction of the new technology in the Court of Appeal is of wide interest in the English legal system. For, as is pointed out in the Bowman Report, the Civil Division is a particularly interesting test-bed for many of the general suggestions for judicial technology that have been put forward in the last few years. This is precisely because it is atypical: it is highly influential and widely respected; it is populated by a manageable number of users (judges, lawyers and administrators) with (in IT terms) a manageable size of case load; and the judges themselves are exceptional in their abilities and commitment. If IT cannot work well here, this would be challenging indeed for other courts and judges. Although it was not an objective of the exercise, the Review may well give rise to the Court becoming an influential pilot site for new technologies.

Litigation Support for Practising Lawyers

What do practising lawyers think of all this new technology and the enthusiasm of both government and the judges? In many ways, the numerous developments sit comfortably with much that is already going on in law firms and chambers. Indeed, one of the first front office applications for lawyers (solicitors and barristers) was litigation support. Primarily for direct use by legal advisers themselves, litigation support convinced many practitioners in England and Wales in the early 1990s that IT could be central to legal practice and to the actual delivery of legal service. The term "litigation support" can be a little confusing, however, because it is used by lawyers in a variety of contexts and can refer to one or more of three applications of technology in the arena of dispute resolution. [16]

First, and most commonly, litigation support is the use of IT to help manage and control the document load which lawyers have to master to advance and prepare their client's case. This is the type of litigation support system that Lord Woolf recommended lawyers embrace more extensively. [17] It is the main focus of attention here in this section of the report but it may be helpful to introduce and say a few words about the others before delving into any further detail.

The second category of litigation support, then, is the use of IT to store and make readily available the work product of lawyers as they progress through a case and generate their own sets of documents. This can be called work product management. Hypertext (the enabling technology which underlies the document browsing capability of the World Wide Web) is a most useful technology in this connection - for linking relevant documents to one another and so enabling users to browse across crucial work product (including pleadings and witness statements) and evidentiary material (files of correspondence, for example).

The final sense of litigation support is where it refers to the use of IT in the courtroom itself. This embraces laptop computers for judges, computer assisted transcription (CAT), displaying documents on monitors across the courtroom, graphics for the presentation of evidence, and even video simulations of events at issue. Judicial IT and CAT are dealt with elsewhere in this report. As for the use of IT in presenting evidence, this has caused far greater stir in the United States and other jurisdictions where civil juries are more commonplace than in England, where interest in this kind of technology has been confined to criminal cases. Even in criminal case, however, it is interesting to note that many senior advocates and judges in England harbour reservations about the lack of relevant court procedures to control this use of IT and are alive to the possibility of technology being misused in misleading jurors and judges. At a litigation support conference in 1990, this hesitation was captured by Lord Griffiths - in paraphrasing one of Disraeli's aphorisms - by suggesting that "there are lies, damn lies and graphics". What lawyers will think of virtual reality applications, which will surely come to the courtroom in due course, one can only begin to guess.

Returning to the most common usage of the term litigation support (in the sense of document management), it should be added immediately, despite the local literature and bravado, that litigation support is still in its infancy in England and Wales. In contrast, it was first introduced in the United States in the mid-1960s and has been embraced extensively there since then. This is not to say that there are not advanced users and sophisticated suppliers in England. On the contrary, some are as leading-edge as can be found anywhere. However, the technology if very far from pervasive: a comparatively small number of English practices use the technologies. There is considerable depth, therefore, but little breadth of usage.

To put the application still further into context, the main thrust of litigation support is to automate various aspects of trial preparation. Rather than having teams of paralegals and junior lawyers thumbing through mountains of files and photocopying extracts well into the small hours of the morning, litigation support technologies streamline these manual processes. Searching, retrieval, cross-referencing and annotating can all be automated using IT. Lawyers can locate relevant papers more quickly than when using manual methods allow. While the cynics are right in saying that litigation support is simply coping with the chaos IT created through photocopying technology, it is still an improvement that is long overdue.

Whether the facilities reduce the cost of litigation for English clients is in doubt. A common view is that this application generally enables lawyers to do far more for their clients (more thorough and comprehensive work) in the available time and so for the same (but not less) fees.

For the avoidance of doubt, litigation support does not obviate the need for an initial appraisal of each document. In the absence of natural language processing technologies, it is hard to see how any competent lawyer can avoid looking through case documents once, for it is only then that the relevance or otherwise of the documents can be assessed. The point of litigation support is that the full document load should not need to be read or searched through manually, in its entirety, more than once.

The potential of this technology is particularly clear in complex technical cases, such as construction or computer disputes, where the party that has mastery of the documents can enjoy a clear strategic advantage over others. But lawyers invest for other reasons as well: the overriding aim for some is to control the costs of the dispute by handling the documentation more efficiently; while others are motivated by a desire to keep apace with opposing parties who have indicated they are using IT (or it is suspected that they are).

Three techniques have dominated litigation support over the past decade. One approach is to compile a computerised index of all documents relating to a case. Each document can be represented in a database as a collection of "objective" features (e.g., date of document, author, recipient) as well as subjective features, requiring lawyers' classifications (such as whether a document is privileged or prejudicial to the client's case or raises a particular point of law). Once set up, such a system can sort all documents, for example, in date order or by authors' name.

A second and complementary approach to litigation support uses document image processing technology. This is the process which can be likened to taking "photographs" of individual documents and so this technology can cope well with materials which are neither printed nor typed, such as drawings or documents with handwriting, signatures, marginal annotations, date stamps and so forth. Users of systems that hold images cannot search for individual words within the imaged documents (the text is not in machine-readable form). Rather, they can view these images as if perusing microfiche on a computer screen.

The third technique is to build a retrieval system that holds not an index but the full text of a collection of papers. This should enable lawyers to search quickly and easily within the entire text of documents for the occurrence of single words (for example, names of individuals, companies, places, or terms such as "warranty" or ”delay") or for words in combination (for instance, the name of a company within a specified number of words of the name of an individual or a phrase such as "defective software").

More advanced users have found that the real benefits of litigation support come with a subtle combination of these three techniques and with hypertext-based work product management systems as well. The sophistication needed here is in selecting one or more of the three appropriate technologies for any case at hand, a decision over which lawyers often agonise. While it is commonly thought in addressing the needs of particular matters that the same selected techniques should be applied to all the documents, in reality this is unworkable and commercially inappropriate and leads either to overkill or to missing an opportunity of full analysis of vital materials. A convincing argument can be made to support the view that the selection of techniques should be dictated very largely by the relative significance of the documents themselves. In any dispute, the documents can be categorised according to their likely impact (which, to make matters difficult, can change as a case progresses); in light of which appropriate enabling techniques can be allocated to each category (for example, vital documents may be subject to all available techniques, while peripheral ones may only enjoy superficial indexing).

Perhaps the most common combination of techniques currently favoured in England is indexing together with imaging – useful but not prohibitively expensive.

For clients, developments in litigation support raise challenging questions about the suitability of the lawyers they instruct. A further set of criteria in selecting legal advisers now emerges, relating to the extent to which lawyers have appropriate technology skills and support. If in major cases of the future, all parties have the documents held in litigation support systems (loaded perhaps by some external bureau), a key point of differentiation amongst practices will be law firms' relative proficiency in exploiting the data in these systems. Are the lawyers adequately trained in advanced searching techniques? What practical experience and track record do they have with litigation support? Do they have permanent, first rate support staff? Are they using advanced techniques, such as conceptual searching, augmented "front-ends" and hypertext to enhance the basic systems? Are they capable of advising proactively on versatile document management systems? Do they understand the complex legal questions, regarding issues such as admissibility and authentication of evidence, that litigation support systems raise?

Certainly, a question today for all clients is whether their current lawyers are investing sufficiently in IT in preparation for the central role it is destined to play. The stage is set for major change in the world of litigation. Even by the early years of the new millennium, large scale or complex litigation without IT will be virtually unimaginable.

Long term IT Strategy for the civil justice system - civil.justice

The last observation leads neatly to the final topic addressed in this report – long-term strategy.

One of Lord Woolf’s recommendations on IT was that a group should be set up to consider and formulate a long-term IT strategy for the civil justice system as a whole. This idea was taken up in earnest in late 1997 by the Minister of State at the Lord Chancellor’s Department, Geoff Hoon MP (who was the Shadow IT Minister during the previous Conservative administration). Under the Minister’s chairmanship, a Group was set up (known as the Civil Justice IT Strategy Development Group), with the broad idea of making recommendations for the role of IT in civil justice over the long term.

The main piece of work undertaken by Group has been the publication of a consultation paper in September 1998. Entitled ” civil.justice” and sub-titled ”Resolving and Avoiding Disputes in the Information Age”, the paper expressly states that it relates to the civil justice system, 5 to 15 years hence (suggesting that Lord Woolf’s recommendations on IT set the agenda for the coming five years). [18] In short, civil.justice takes up where Lord Woolf’s work on IT ends.

The terms of reference for the group, paraphrased, are as follows: to discuss the future of the civil justice system and its use of IT post-Woolf; to look at the future prospects for the development of IT and consider their potential for innovation in the civil system; and to consult relevant groups, individuals and businesses with an interest in civil justice, including the judiciary, the legal profession, other government Departments and others. Responses to the consultation paper were due in by 18 ^th December 1998, with a view to producing a final report, it is likely, some time in mid to late 1999.

In the preface to civil.justice, Geoff Hoon explains why it was considered important to take a long-term view: to ensure that money spent now on short and medium term IT is not wasted in years to come; to help produce a long-term vision that will lead the way for the civil justice system; to engender greater public confidence; and to attract private sector investment.

In its 40 or so pages, civil.justice covers an enormous amount of ground. Only a flavour of its contents can be given here.

Perhaps the most provocative part of the consultation paper is the second chapter, which identifies some 16 assumptions that are frequently made about the civil justice system; and, to some extent, each is challenged in the light of the possible impact of IT. The following four assumptions indicate the type of debate that is being encouraged:

Each of these (and 12 more) are called into question.

New directions in legal services are also identified in civil.justice. It is postulated that high value and complex legal work of today’s lawyers will not be fundamentally changed through IT but will certainly be rendered more efficient (optimised and streamlined). At the same time, legal work that is frankly routine and repetitive work will in due course come to be systematised and, later, delivered online. Finally, and most radically, IT is regarded as vital tool to overcome the grave social ill of ”unmet legal need”: the report envisages, for example, online legal guidance systems accessible to non-lawyers through the next generation of televisions; and online legal information systems to support and empower voluntary legal workers (both of which may well be central to the government’s proposed Community Legal Service).

Disputes and the court system are, of course, central to the consultation paper. Acknowledging that the problems and challenges facing the low-value, high volume cases are quite different from those of the high value, low volume matters, civil.justice does seek to address both categories. A variety of topics are addressed: the need for an Intranet for the Court Service and the Judiciary which is connected to the wider GSI (the UK Government Secure Intranet); unified case management; multi-media electronic files; litigation support systems; courtroom technology; alternative dispute resolution and IT; judicial technology; and ”virtual hearings”.

This last possibility goes to the heart of all serious questions about the future of civil litigation and dispute resolution – will children of today feel it vital to congregate together in one physical location to enforce their entitlements or might they find it more natural to ”appear” through video conferencing, or have their disputes resolved through some kind of online adjudication service?

In conclusion, it must be asked what benefits are being expected from IT in the English civil justice system in the long term? A powerful answer to this is given in civil.justice (in the preface). There, it is said that the major benefits should be:

If this is achieved, IT will indeed help to transform the civil litigation process in England and Wales in the twenty-first century.

Footnotes:

[1] Richard Susskind FRSE DPhil LlB FBCS, is the author of four books, including The Future of Law (Oxford University Press, 1996 – see http://www.oup.co.uk/academic/Law/susskind). He is a past Chairman of the Society for Computers and Law, Visiting Professor to the Centre for Law, Computers and Technology at the University of Strathclyde and was appointed IT Adviser to the Lord Chief Justice in 1998. In relation to the initiatives discussed in this report, he was one of the co-authors of the first version of the ORSA Protocol, he was Lord Woolf’s IT Adviser (1995-96), a member of the Court of Appeal (Civil Division) Review team (1996-97) and is a member of the Civil Justice IT Strategy Development Group. He can be contacted on mailto:richardsusskind@msn.com

[2] For another appraisal of the impact of IT in the Justice System in England and Wales, see Lord Justice Brooke, ”IT and the English and Welsh Courts: the Next Ten Years” (Keynote Speech, 13 ^th Bileta Conference, March 1999), at http://www.open.gov.uk/lcd/judicial/speeches/dublin.htm

[3] Version 2.0 of The ORSA Protocol can be obtained at http://www.courtservice.gov.uk/not_itp.htm

[4] Joyce Plotnikoff and Richard Woolfson, ”Replacing the Judge’s Pen? Evaluation of a Real-time Transcription System”, International Journal of Law and Information Technology 1 (1993) 90.

[5] See His Honour Judge Michael Mander, ”The Judith Report”, International Journal of Law and Information Technology 1 (1993) 249.

[6] Lord Woolf, Access to Justice - Interim Report (Woolf Inquiry Team, June 1995). Also available at http://www.open.gov.uk/lcd/civil/interhd.htm

[7] Lord Woolf, Access to Justice – Final Report (HMSO, July 1996). Also available at http://www.law.warwick.ac.uk/woolf/report

[8] Sir Peter Middleton GCB, Review of Civil Justice and Legal Aid. Report to the Lord Chancellor (September 1997). Also available at http://www.open.gov.uk/lcd/middle/index.htm

[9] Modernising Justice: The Government’s Plans for reforming Legal Services and the Courts (December 1998, Cm 4155). This can be found at http://www.open.gov.uk/lcd/consult/access/mjwpcon.htm

[10] See Chapter 13 of the Interim Report and Chapter 21 of the Final Report. This current report does not seek to address all of Lord Woolf’s recommendations on IT. The main focus here is on case management technologies because these are the most vital for the reforms.

[11] See the IT Strategy of the Court Service at http://www.courtservice.gov.uk/itstrat.htm

[12] See http://www.courtservice.gov.uk/hq_ind.htm

[13] Sir Jeffrey Bowman, Review of the Court of Appeal (Civil Division) (September 1997). Also available at http://www.open.gov.uk/lcd/civil/bowman/bowhd.htm

[14] Chapter Eight of the Bowman Report makes detailed recommendations on IT.

[15] See footnote 9 of this report.

[16] On litigation support generally, see Richard Susskind, The Future of Law (Oxford University Press, 1996 and 1998 (paperback)).

[17] See especially Chapter 13 of Lord Woolf’s Interim Report .

[18] Copies of civil.justice: Resolving and Avoiding Disputes in the Information Age (September 1998) can be obtained from mailto:dhartley.lcd.sh@gtnet.gov.uk or http://www.open.gov.uk/lcd