Justice eBay Style

Frederick Wilmot-Smith

The Shield of Achilles, as described in the Iliad, portrays two cities. One of them is at war, circled by ‘a divided army/gleaming in battle-gear’. In the other, there is a promise of peace through the exercise of law: ‘the people massed, streaming into the marketplace/where a quarrel had broken out and two men struggled/ over the blood-price for a kinsman just murdered./One declaimed in public, vowing payment in full –/the other spurned him, he would not take a thing –/so both men pressed for a judge to cut the knot./ The crowd cheered on both, they took both sides,/but heralds held them back as the city elders sat/on polished stone benches, forming the sacred circle,/grasping in hand the staffs of clear-voiced heralds,/and each leapt to his feet to plead the case in turn.’

This is a picture of justice being done. Where there is a disagreement about rights, a judge can be called on to adjudicate. Arguments are made in a public space, witnessed by the community. The judge does not seek compromise or agreement, but rules on claims as the law demands. Litigants are equal before the law, each entitled to have their rights protected by a court.

All three of the ideals in this picture – publicity, legality and equality – are called into question by recent reforms to the civil courts, the biggest changes since the late 19th century. The reforms, which come at an estimated cost of £1 billion, aim to bring ‘new technology and modern ways of working to the way justice is administered’. Some of the changes appear harmless enough, for example increasing the availability of wifi in the court system. But more striking, and less obviously innocuous, is the proposal, currently being piloted, to set up an ‘online court’ for claims of £25,000 or less. It will be called the Online Solutions Court. (An alternative name, the People’s Court, was rejected because of its ‘unfortunate historical connotations’.) A full launch is planned for next year with the intention that by 2022 most civil claims will be resolved online – in effect, only companies and wealthy individuals will remain in the ordinary legal system.

In the two influential reports that heralded these changes, Lord Briggs suggested that the online court process might have three stages. First, you, the claimant, would fill in a form online. Pre-populated boxes would help you to clarify the nature of the claim. You would select your opponent: your builder, say, or your neighbour. Then you would specify the nature of the complaint: against the builder, it might be ‘defective performance’ or ‘delayed performance’; against the neighbour, ‘excessive noise’ or ‘boundary dispute’. At this stage, Briggs said, the online system could signal ‘the basic legal principles applicable to the litigant’s dispute’. In theory, litigants should be able to set out their claim without having to pay for a lawyer.

The second stage is mediation. The idea is that the opposing parties should be encouraged to agree on a solution to the claim without turning to litigation. A ‘case officer’ would read through the materials and try, over the phone or online, to coax the parties to a settlement. There has been a trend in civil justice, visible as far back as the mid-1990s at least, to regard litigation as a sign of societal failure. Claims for justice have become ‘disputes’ to ‘resolve’; if they can be resolved before a judge gets involved, all the better. Briggs aims to make conciliation ‘a culturally normal part of the civil court process rather than, as at present, a purely optional and extraneous process’. It will be mandatory for litigants in the online court: only if they cannot agree on a settlement will a judge enter the picture.

At the third stage, there would be a ‘radical departure’ from the present system in that ‘there would be no default assumption that a live claim would have to be settled at a traditional face to face trial.’ A trial would be a ‘last resort’ if all other alternatives fail, including telephone or video conferencing or ‘resolution on the documents’: a judge might read the papers, reach a conclusion and issue a judgment from the comfort of his or her kitchen.

That, anyway, was Briggs’s plan. Whether it is the government’s plan is less clear: there is no government paper describing the intended outcome of the reforms. An invitation-only pilot scheme for the online court began in August 2017; a public pilot began in March 2018 and will end in November. To find out more, I issued a claim against Apple for a minor grievance. I had taken my phone to the Apple store in Regent Street to have its battery replaced. I asked the assistant at the Genius bar to help me back up the phone’s data (I’m technologically inept). Unfortunately, only some of the phone’s data was stored: I lost years of photographs. I complained to Apple but they didn’t respond. This seemed a good opportunity to try out the online court. To issue a claim, you have to pay a fee, which ranges from £25 to £4500, depending on the amount in dispute. To save money, I kept the amount I sought from Apple on the low side, and made my claim.

The pilot scheme, I discovered, doesn’t follow Briggs’s proposals. For a start, there are no pre-populated boxes: I had to formulate my claim from scratch. HM Courts and Tribunal Service (HMCTS) told me that there is no plan to implement Briggs’s ‘interactive triage’ any time soon. This is quite surprising since Briggs thought the triage was the ‘main feature’ of his reforms: without it, he said, the court would be ‘as unnavigable as before’. But it’s also quite predictable: the pilot was set back six months by the technological difficulties involved in enabling parties to admit part liability. If something so simple is so complicated, AI-assisted claim forms are years away.

The second thing I learned was that mediation is not yet mandatory: in my case Apple refused to take part. Frustrated as I was – I had hoped to find out more about how the mediation process worked – it’s right that this remains optional: if a litigant regards a claim as wrong-headed, they should be entitled to refuse a compromise. But I doubt that view will prevail. Mediation is popular among lawyers, judges and politicians alike; litigation is seen as a refuge of the intransigent.

One further thing I learned about the online court is that its name is misleading. I may have started my case online, but when Apple refused to mediate it was transferred to my local county court. This meant I had to pay a further ‘hearing fee’: these start at £25 and rise to more than £1000, depending on the value and complexity of the claim. At the moment the ‘online court’ is a bit like online dating: the first steps can be taken over the internet, but the important action takes place face to face.

So long as the online court remains nothing more than a system to enable people to start their claims over the internet, there seems little to worry about: let a thousand flowers bloom. But Briggs thinks a face to face trial should be a last resort. Hearings are bound to move online: gathering everyone together in the same place will come to seem a needless and expensive hassle. Indeed, do we really need hearings at all? In 2015 the Civil Justice Council published an influential report proposing the creation of a crop of ‘online judges’ who would ‘decide suitable cases … on an online basis, largely on the basis of papers submitted to them electronically’. A representative of HMCTS has told me that it is considering whether ‘cases with a low claim value (under £300 for example) could be dealt with by determination on the digital file.’ Why bother with a hearing for low-value claims if everything has been set down on paper? The more rhetorical that question sounds, the less sanguine I feel.

Some uses of technology in the court system are unobjectionable: the Supreme Court and Court of Appeal stream their proceedings online; civil courts – well-resourced ones, anyway – increasingly make use of cloud technology to store documents. Others aren’t ideal but may be unavoidable: in some areas of the country, nearly all defendants in criminal cases appear in court via video link at some point in the process. But some uses of technology are questionable in principle. Before the general election of April 2017 stopped the Prisons and Courts Bill in its tracks, for example, the plan was to give individuals the option to plead guilty to crimes over the internet. Let’s not pretend there isn’t a difference between the click of a button and a statement made in a public court.

The question isn’t whether or not to use technology; it is how and for what purpose it should be used. Proponents of online courts, Briggs included, have taken inspiration from the dispute resolution mechanisms used by such companies as eBay to manage internet marketplaces. Commercial activity over the internet was prohibited until 1992. When eBay launched in prototype three years later it had no complaints procedure: its founder, Pierre Omidyar, would write to both parties asking them to ‘work it out’. This wasn’t a viable long-term strategy: a reliable system of dispute resolution was vital if buyers and sellers were to trust the platform. But many sales involved very small sums of money, so normal systems of dispute resolution – ones using humans – wouldn’t be cost-effective. The scale of the problem was huge: between 3 and 5 per cent of online transactions give rise to a dispute and by 1998 eBay had 1.5 million items for sale; that figure is now more than a billion. Unable to solve the conundrum on its own, eBay contracted out dispute resolution to an internet start-up, SquareTrade, whose solution was a two-stage process. The disputing parties proceeded through a series of online forms designed to lead them to a settlement. Most complaints were resolved without any human intervention. Where no agreement could be reached – about 10 per cent of cases – the parties could appeal to a human mediator. By 2003, eBay’s system could handle several million disputes per year; today, it resolves more than sixty million.

Systems like this one are now unexceptional. A large number of companies – including Amazon, Airbnb and Uber, as well as eBay – purport to be mere facilitators of exchange, providing a platform to enable buyers and sellers to interact. They try to minimise their involvement in the process, but when a buyer or seller complains, the company has to step in. In this way, vast swathes of the justice system have been privatised and placed online. (This is to say nothing of cognate enforcement procedures: Reddit and Twitter are responsible for a large part of the ‘policing’ of hate speech; Facebook and YouTube are the principal ‘enforcers’ of intellectual property law.) Many more disputes are handled in this way than could ever be managed in ordinary civil courts. If eBay is resolving sixty million disputes per year and 10 per cent of them require third-party intervention, that’s roughly six million complaints per year. By contrast, the English county court system has, since 1985, heard about twenty thousand cases per year. In the first year or so of the pilot of the UK online court, fewer than fifty thousand cases were launched.

Technological solutions are alluring in part because our justice system is in such dire straits. Many criminal lawyers are leaving the profession: between 2014 and 2018, the number of solicitors practising in criminal law fell by 9.4 per cent; there are no criminal law solicitors under 35 in Norfolk, Suffolk, Cornwall or Worcestershire. The number of people receiving legal assistance in civil cases has fallen by about two-thirds since 2013, when the Cameron-Clegg cuts to the legal industry took effect. Some areas of civil law suffered even more: grants of legal aid for welfare disputes, for instance, fell by 99 per cent between 2011 and 2017. (The majority of appeals are successful, indicating that a lot of people are not getting the benefits to which they are entitled.)

Some of the concerns with this state of affairs are to do with the problems the system creates for individual people: some people don’t bring cases when they should; good claims are defeated for lack of legal help; bad claims succeed because of an inequality of legal firepower. A different, ‘institutional’ perspective captures a different set of concerns, about the justice of the legal system as a whole. Its benefits can be distributed unequally: Briggs, for example, claimed that ‘most ordinary people and small businesses struggle to benefit from the strengths of our civil justice system.’ All legal systems have flaws: some people will be denied compensation when they are owed it; some will be wrongfully convicted. Those benefits and burdens should not fall disproportionately on a particular group, for example on those with (or without) money. Any reform must consider both the individualist and the institutional perspective.

The first issue when considering a court from an individualist perspective is accessibility. If no cases ever come before it, it isn’t much use. By these lights the offline system fails miserably. Briggs consulted more than a thousand people in writing his report: not one of them would have recommended litigation for a claim (like mine against Apple) of £25,000 or less. Professional opinion, in other words, holds that it is irrational for the vast majority of citizens to resolve their disagreements through law. Few do. The online court is promising in this respect: it aims to be as simple to navigate as eBay’s complaints department. The analogy isn’t perfect, though. You only end up in eBay’s system if you have tried to buy or sell something online: all potential participants will be computer-literate. But more than 15 million people in the UK do not use the internet, or use it only rarely, and according to the government’s own estimate, 70 per cent of the population may require assistance to access the internet. These numbers are much higher than I would have guessed, and suggest that Sir Ernest Ryder, the senior president of tribunals, one of the country’s most senior judges and a supporter of the reforms, is overconfident in stating that ‘we are at home on the net.’ Even if everyone had easy access to the internet, other difficulties would remain. The National Literacy Trust estimates that 16 per cent of adults in England – some seven million people – are ‘functionally illiterate’. These people will struggle to vindicate their rights without the help of legal aid to propel them through the traditional system.

The next question is whether those who do manage to access the online system can be dealt with justly. That will depend on the system’s capacity to define what their case is about and to determine the rights and wrongs. In practice, working out what is at stake in a case can be a tricky business: an important part of what a lawyer does is to sort relevant from irrelevant facts, to identify what really matters. Online complaints systems are unhelpful analogies in this respect. For example, eBay has a finite list of possible situations (an item isn’t delivered or isn’t as described) and responses (the customer gets a refund, or they don’t). The more complexity is introduced, the less plausible the eBay model becomes as a prototype for the justice system. That is probably the reason the pilot system doesn’t help compile the claim form or defence (without that feature, remember, Briggs thought the online court would be ‘as unnavigable as before’).

Some of the problems that may ensue in an online system are thrown into relief by the distinction between ‘substantive’ and ‘procedural’ justice. Suppose you move out of your flat and your landlord wrongly refuses to refund the deposit. Substantive justice addresses the question of whether the landlord will be forced to issue the refund; procedural justice concerns the way legal institutions decide on that issue. Even if the court’s decision is correct as a matter of substance, the procedure would be unjust if it was arrived at by a coin toss.

One reason public hearings are valuable is that they help make sure substantive justice is done. They are, Bentham said, the ‘surest of all guards against improbity’ because they ‘keep the judge himself, while trying, under trial’. More prosaically, they can help the judge to find out what is in dispute. Consider what would happen if the online system were used to review a decision, say, to remove someone’s Disability Living Allowance. (This example is not far-fetched. In 2017 the lord chief justice said he was trying to create ‘an online court for everything’, including ‘family, tribunals and civil’ applications. In autumn 2018, HMCTS said that it planned to introduce online hearings for appeals in the Social Security and Child Support Tribunal within the next 18 months.) These cases usually turn on a host of factual issues. How impaired is the claimant’s movement? For how long can they stand up? Are they able to travel to work? Litigants in person often fail to include the crucial information in their written applications. A litigant may point out that they have a doctor’s note saying they are unwell, but that won’t tell the judges whether they are fit to work. Such information can be elicited at a hearing, which usually takes 45 minutes or less. If there is no hearing, we can hypothesise, benefits might be denied (or, less plausibly, granted) unjustly because the judges do not have the relevant facts.

There is good empirical evidence to support that hypothesis. An analysis of 1.7 million social security appeals between 2000 and 2015 found that 48 per cent of appeals with an oral hearing were allowed; when the cases were decided on paper that number fell to 15 per cent. This may be because, as the National Audit Office has said, ‘the presence of the customer provides crucial evidence.’ One study found that 63 per cent of appeals were allowed because of oral evidence. The introduction of an online court stands to replicate this disadvantage throughout the tribunal system.

In principle, substantive justice could be done in such cases if the online system were designed well enough that it could work out what was at stake and who was in the right. But public hearings are also important for procedural justice. Mental health tribunals, for example, decide whether people should be detained in psychiatric institutions and adjudicate on detainees’ objections to their treatment. Caseloads are substantial: tens of thousands per year and rising. These tribunals are procedurally just only if the individuals concerned – who may be vulnerable, scared and confused – are allowed to make their case in a setting suitable to the gravity of the situation. They must be allowed to make arguments in person.

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The general concern in all this is that a system which works well in some cases will be extended inappropriately. Technology can be intoxicating, and proponents of technological advances – judges among them – tend to promise more than it is possible to deliver. The attendant risk is that the promise of reforms will be used to justify changes that cannot easily be undone if (and when) the delivery falls short. In return for the £1 billion investment in technological modernisation, principally the mooted transfer of many proceedings and processes online, the government wants to cut annual spending on courts by £250 million: 6500 of 16,500 court staff stand to lose their jobs. The ‘modernisation programme’ of the Ministry of Justice has already led to the closure of 230 crown, county and magistrates’ courts since 2010. The jobs and the courts are likely gone for good – though Sir Terence Etherton, the judge in charge of the civil justice system, has suggested the possibility of using ‘pop-up courts’.

You can have a lot more justice or you can save a lot of money; but not both at once. There is little doubt where the government’s priorities lie. There has been no expansion in spending on legal aid since the 1980s; since the Cameron-Clegg coalition came to power in 2010, annual spending on legal aid has fallen by nearly a billion pounds in real terms. These reforms removed all welfare benefit cases from the scope of legal aid. This was bound to lead to some injustice: it has been shown that those with representation in such cases are 18 per cent more likely to succeed than those without. Despite this, the government reasoned that, for example, disability benefit cases were not of ‘sufficiently high importance to warrant funding’ because they are of ‘lower objective importance’ than ‘fundamental issues’. That sort of thinking will no doubt be used to justify pushing such cases online.

So far I have been looking at courts from an individualist perspective. But the central moral question for legal reforms should be whether they address institutional inequality. The online court will, as currently envisioned, be imperfect: its decisions may not be substantively just; it compromises on procedure. But no system is perfect; this may be the best we can do with the resources we have. That argument, often made by defenders of the online court, is a powerful one: it is a claim about the justice of the institution.

From the institutional perspective, any systemic reform to the legal system is an answer to the question: who should be allocated court resources for adjudication on their claims? One concern about the online court is that it will have limited financial scope. At the moment, the idea is that it will hear claims worth up to £10,000; that ceiling will probably rise to £25,000. All claims thought to be worth more than that will end up in the traditional system. As a consequence, two important features of the online reforms – the prioritisation of conciliation and the presumption that there will be no face to face hearing – will apply only to lower-value claims. Large companies and wealthy individuals (who will make up a disproportionate number of those with claims worth more than £10,000 or £25,000) will still be allowed to seek justice through the physical court system (and will continue to receive state resources); everyone else’s claims will be downgraded.

Commenting on the closure of courts, the Civil Justice Council (CJC) says that the ‘reduction in need for many of the current buildings and the land on which they sit’ is part of the ‘economic and business case’ for online courts. Courts, it reasons, are a ‘service’ rather than a ‘place’, and that service can be delivered with greater efficiency online. Etherton remarks that ‘we will still need court buildings and physical hearings’ if we are ‘to deliver properly justice for complex, commercial disputes’. It is only in ‘simpler cases’ that ‘a more proportionate process’ allows a ‘primarily online approach’. Equally, only those with less money will, in the CJC’s euphemism, be ‘empower[ed] … to find solutions without judicial involvement’.

The CJC’s description of courts as a ‘service’ and litigants as ‘users’ is striking. Such talk is now widespread: I quoted the National Audit Office’s description of those who challenge the withdrawal of their benefits as ‘customers’; the lord chief justice says that courts are in the ‘dispute resolution business’. When the civil justice system is presented in these terms, it’s no wonder that companies’ dispute resolution procedures seem an apt analogue. But those procedures were not designed as instruments of justice. Companies want to maximise profits and efficient dispute resolution mechanisms are instrumental to that aim: people wouldn’t buy or sell on eBay if they didn’t think there was some protection should things go wrong. But the system cuts both ways: Amazon will decide whether to refund you or, say, cancel your account partly on the basis of how often you have complained in the past, or on whether or not you are a Prime member. Bank of America has patented software that enables it to assess the wealth of family members when considering whether to waive customers’ fees. Moven, a banking app that launched recently in the UK, makes financial decisions based in part on an individual’s social media presence. These may be sensible commercial decisions, but such methods can have nothing to do with the administration of justice.

The consequence of the commercialisation of justice is that the legal system, and any proposed reforms to it, are now assessed in terms of the revenue they generate. (Etherton boasts that the online pilot has generated ‘approximately £336,000 in court fees’.) This leaves a justice system divided against itself. Commercial lawyers are fluent in market-speak and have used it successfully to defend their patch: London’s commercial court is well resourced, its lawyers well off. Briggs refers to the government’s ‘encouraging commitment’ to ensuring that the court remains a ‘magnet’ for international litigation. The commercial court is a prize asset because it is a source of future revenue. Judicial acquiescence in this shift undermines ordinary courts’ best argument for funding: that they secure justice. Unable to fund themselves, these courts are seen as inefficient, in need of reform or abolition. Part of the motivation for promoting the online court is that it will free up resources for the profitable business of law.

One morning in June, I cycled to the Clerkenwell and Shoreditch County Court to argue my case against Apple. I lost. The judge had taken his iPhone into the Apple store the weekend before and found the experience excellent. He opened the case by telling me so, which didn’t augur well. His central finding was that I should have ignored a court order because, despite its official stamp, it was probably written by the court’s administrative staff, not a judge, and sent in error; his answer to my (perhaps over-complicated) argument about the meaning of Apple’s contract was confused. He also said I had not properly formulated my claim when I filled in the online form and that, if I wanted to continue, I would have to start over again, paying a new court fee. But, he went on (this bit was straight out of Joseph Heller), if I did choose to issue another claim, he would strike it out again, since I had already had ‘one bite of the cherry’.

All this could have left me disillusioned. Not a bit of it. The judge was kind, concerned, and clearly trying to do the right thing. He let me make my case, he listened. Studies have shown that citizens’ satisfaction with legal processes depends on the sense that their arguments have been heard, that they have been shown respect. I left court disappointed but not bitter. But I had also demonstrated, unwittingly, Briggs’s point that his reforms will fail to unlock access to justice for ordinary citizens if technology doesn’t help them compile their claims. I am a lawyer – albeit, on this showing, not a very good one. What hope is there for those without legal training?