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JILT 1998 (1) - Lord Mark Saville

Information Technology and Case Management

Lord Mark Saville
Lord of Appeal in Ordinary
savillemo@parliament.uk

1. Introduction

It now seems clear that all concerned have accepted that the future for civil litigation lies in proper case management. The Woolf Reports, and the Bowman Report on the Court of Appeal, both make case management the central foundation of their proposals; and the Government seems to have accepted that this is the foundation on which to build.

I am delighted that this is so, for it seems to me that this is really the only way we can realistically seek to improve our civil justice system. It is the way pioneered by the Commercial Court and the Official Referees Court, in both cases with the enthusiastic support of the users of those Courts.

People ask me how Information Technology can help in case management. To my mind this is not really the right question, since I am convinced that proper case management will wholly depend on Information Technology and will not be a viable proposition without it.

2. The Objective of Case Management

What is essential to remember is the message so eloquently expressed by Professor Richard Susskind. Information Technology has now reached the stage where it does not merely automate existing ways of doing things; it can innovate i.e. it can provide entirely new and better ways of achieving our objective.

The objective is, in my view the same as that expressed in Section 1 of the Arbitration Act 1996 , which I had a hand in drafting. In that Act the object of arbitration is stated as being 'to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense'. So far as our Courts are concerned, we have no problem over impartiality; but the same is not true of unnecessary delay and expense, the twin evils Lord Woolf sought to combat.

Proper case management requires those in the justice system to work as a team or teams, rather than in separate compartments. For historical reasons, there grew up a serious gap between the judges on the one hand, and the administrators of the justice system on the other. Each regarded the other with some suspicion. The judges thought that the administrators were ever seeking to increase their control over the mechanisms of justice, while the latter thought that the judges were over-ready to interfere in matters which were not really their concern. This divide, between what one can describe as the back office and the front office, did not lead to an efficient justice system.

With case management this divide cannot be allowed to exist. There must truly be a team effort where all concerned in the justice system work together to achieve the objective. This is one of the areas where Information Technology has a vital role to play. Much of the information required properly to manage cases must be available to all concerned, with a ready means to sort, record, retrieve and use that information, wherever the people concerned happen to be. This just cannot be done efficiently by paper or by physical meetings. It can be done with the help of Information Technology quicker and better than any other method presently available.

This is now appreciated by many, though perhaps not yet all. The ability to use Information Technology to do these things means not just that present processes can be automated, but that all parts of the justice system can work together in a way that in the past has simply not been possible. In other words, Information Technology provides a new way of working together.

3. The Need for Medium and Long Term Stategies

I can give an example where this is actually happening now. A few months ago, Ian Hyams (the head of the Information Systems Division of the Court Services Agency ) and I set up the Judicial Technology Group, whose task is to consider short and medium term strategy for employing Information Technology for both our immediate needs and for the implementation of Woolf. This body, which only meets physically about twice a term, also has conferencing and e-mail facilities on the Judges' communications network FELIX. This enables judges and administrators to maintain a constant dialogue in cyberspace, wherever they happen to be. Although we have only been running for a short time, it seems clear to me that the project is proving a success. For the first time, all concerned are working together, the back office with the front.

Of course, we are facing problems, among them the fact that we cannot look to the government for any large-scale capital investment, since (wholly understandably) there are other calls on the taxpayer, such as health and education. But this government, like the last, is committed to the Private Finance Initiative , and this is the route that we are following.

In my view, quite apart from financial considerations, it is imperative that we use the wealth of technical experience and knowledge available in the private sector. The justice system has lagged behind the world of commerce and industry in adopting Information Technology. That world is driven by competitiveness and thus is where one will find what currently works, as well as the best thinking on what is likely to work in the future. Although the justice system should be driven by the imperative of providing a better, cheaper means of delivering its product, it has in effect a monopoly position and is thus not motivated to the same degree constantly to strive to do this. We should therefore look outwards for help, taking advantage of what the market has proved to be viable and of the competition among outside organisations to provide us with the best means of preparing for the future.

At present I see that future as containing what can be loosely described as a "justice intranet," or series of intranets, each connected to each other and to the outside world. This infrastructure, with appropriate "firewalls" and security gates, will enable not just those on the supply side to work together as teams, but for the litigants and their advisers to use the appropriate parts of the system, both to provide and to obtain relevant information. I see the development (with broad band transmission of data) of virtual courtrooms, when it will no longer be necessary to travel round the country (or from abroad) but where cases can be conducted in cyberspace. This is not in fact a pipedream. The World Intellectual Property Organisation in Geneva is at this moment preparing shortly to offer an international Web site-based arbitration service to deal with Internet domain names disputes.

The short-term implementation of Woolf will not, of course, involve such developments. It will be principally concerned with providing data for proper case-tracking and the like, with the object of ensuring that the Court will be able to exercise control over the progress of cases. What is to my mind is essential, however, is that those planning the implementation of Woolf should, at least occasionally, lift their eyes from their immediate tasks and look further into the distance. Short and medium term strategy is, of course, essential. To meet the planned date for Woolf, there will have to be substantial investment in hardware, software and training. But experience from the recent past demonstrates that there is a substantial risk that that investment may be largely wasted unless those planning the short and medium term can do so in the context of some longer-term thinking. For some time I have been trying to persuade the authorities that it is essential to establish a small group of people charged with considering what the long term future of Information Technology is likely to hold and how we can best prepare now for that future. This is a novel idea so far as the justice system is concerned, where to date planning has been exclusively based on short-term budgetary considerations.

4. Conclusion

There are those that say that it is difficult to look further forward than about tomorrow afternoon in the world of Information Technology, so fast are things changing. In one sense that is true, but in another sense I believe that it is not only possible to see where present trends are likely to lead, but also by seeking to do so actually to shape to a degree what the future will hold. Of course there will be new inventions which we cannot foresee, but the trend is for smaller, faster machines, transmitting information (including, of course, video) at greater and greater speeds, with an increasing ability to sift the infinite amount of material that will be available to all, so that as the technology improves, the risk of information overload will decrease rather than increase.

Those who have read Professor Susskind's The Future of Law will have gathered by now that I subscribe to his views and indeed have unashamedly borrowed from them in writing this short article. Richard Susskind was, of course the adviser on Information Technology to both Lord Woolf and Sir Geoffrey Bowman. I am delighted to learn that he proposes shortly to publish a revised version of this book. To those who have the interests of justice at heart and who wish to see how Information Technology is likely to change and improve our justice system, this book is in my view required reading.

Last revised: Wed 23 Feb 2005