“Justice has no second class: even in an age of austerity”

I have been looking at the speech that the Senior President of Tribunals Sir Ernest Ryder gave at the University of Bolton on 3 March. The subject of the speech was ‘The Modernisation of Access to Justice in Times of Austerity’.

The speech is quite long and, as one would expect, much of it relates specifically to tribunals, rather than the rest of the justice system. I will therefore ‘cherry-pick’ the speech, concentrating on those parts that are of interest generally, or are of relevance to the family justice system.

I will begin with the quote from the speech that I have used for the title of this post. This, I think, is critical to any discussion of austerity-driven reform of the justice system: the system must still be equally available to all in society, irrespective of their circumstances, in particular their means. This is the crucial thing that the government completely missed (or, more likely, ignored) when it decided to abolish legal aid for most private law family matters. At a stroke, the government thereby created a second class of family litigants, who were hugely disadvantaged by not being able to access proper legal advice and representation. I appreciate that it is not an easy task to make financial savings whilst maintaining a system that is equally available to all, but surely it is a task that is worth putting some effort into, rather than simply wielding the blunt axe of budgetary cuts.

So, how does Sir Ernest propose to achieve this task? Well, I have to say that, as with so many enthusiastic judicial discussions of reform there are quite a few examples of ‘mumbo-jumboery’ of somewhat dubious meaning. What, for example, does “specialist decision-making, using innovative and informal techniques, to provide effective and accessible justice for our users” mean?

Leaving those aside for a moment, Sir Ernest says that he has “explored the potential for modernisation under three key themes: one coherent and seamless justice system; one flexible and efficient judiciary; and a focus on better outcomes for users.” He then looks at each of those in turn:

It should come as no surprise that the system Sir Ernest envisages is a digital one, including Online Dispute Resolution. In particular, he foresees what he calls ‘online continuous hearings’, in which all participants “are able to iterate and comment upon the basic case papers online, over a reasonable window of time, so that the issues in dispute can be clarified and explored”. There would be no single trial or hearing in the traditional sense. The judge will take an inquisitorial and problem-solving approach, guiding the parties to explain and understand their respective positions. Once concluded, this iterative approach may allow the judge to make a decision there and then, without the need for a physical hearing, but if such a ‘hearing’ is required, that may also be conducted online. As I have said here previously, I can foresee that certain types of family disputes may be suitable for such a system, such as simple financial remedy disputes, but I have difficulty in seeing an online system being suitable for other types of family disputes, particularly disputes involving arrangements for children.

Sir Ernest suggests another benefit of a digitised system is that it provides the opportunity for there to be a ‘one stop shop’, whereby a litigant can go to the system with a problem and have that problem resolved, without the need for the problem to have to be sub-divided and dealt with in separate ‘bits’. This is certainly still an issue, for example in a cohabitee case a party may have to make one application to the family court to deal with children issues and another to the civil court to deal with property issues. Clearly, this is inefficient and having a single point of entry would be beneficial, particularly for litigants in person – the various issues can then be directed to the right part of the system for the particular type of claim.

Moving on to his second theme, Sir Ernest envisages “one judiciary, with specialist expertise, deployable across jurisdictions, flexibly and responsively, as caseloads require”, which he considers would “produce a better qualified and experienced judiciary; one better able to deliver justice”. If I understand this correctly (and I’m not sure that I do) such a system could involve, for example, a judge who specialises in civil claims dealing with family disputes. If so, I am not happy with the idea. I recall that it was often the case during my career that a family case was dealt with by a judge without experience of practising as a family lawyer: how can that be for the best?

Linked to this Sir Ernest foresees the far greater use of what he calls ‘early neutral evaluation’ whereby at an early stage of any claim the parties outline their claim to a neutral third party, who then gives an assessment of the merits of the claim. As Sir Ernest points out, such a system already exists in the family law context with ‘Financial Dispute Resolution’ appointments, and in his recent speech to the FLBA the President of the Family Division Sir James Munby indicated that something similar was in the pipeline for children disputes – the family justice system leading the way!

Finally, with another piece of jargon, Sir Ernest talks of “quality assured outcomes”, i.e. better outcomes for the court users. I don’t really want to say much about this, as it surely goes without saying that the court should ensure the best possible outcomes for its users, and this applies to family matters just as to other types of dispute. If a more efficient system suitable for an age of austerity is to be built then part of that process is ensuring that outcomes for users are at least as good as under the existing system, if not better.

The full text of the speech can be found here.