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Compulsory electronic working in the Rolls Building: time to reflect

It has been almost a month since electronic working became compulsory for professional users of the Rolls Building courts, soon to be called the Business and Property Courts, which Paul Darling OBE QC discusses this weekThis has come as a shock to many people, although we have been using the scheme for nearly two years in the TCC (as Jennifer Varley discussed in her blog, Electronic working in the TCC: is the ball in our court now?). We have embraced it, finding that it saves time and costs as well as large amounts of photocopying.

Electronic working, known as CE-File, has met with resistance from certain quarters, particularly from those with long memories who remember previous failed electronic schemes. This, together with the natural conservatism of the legal profession and the sense that it did not offer practitioners any benefit over email, meant that adoption rates hovered at around the 30% rate. On 15 December 2016, HM Courts & Tribunal Service (HMCTS) announced that the scheme was to become compulsory for professional users from 25 April 2017, and the use of email prohibited in order to force professional users to engage with the system.

Now seems like a good time to look at how electronic working in the Rolls Building is faring and what still needs to happen to support this process.

The good news is that the system is working well and the overwhelming feedback from our fee earners so far has been positive. HMCTS issued service levels for approval of documents on 19 April 2017 and they seem to be keeping to them. Some users have commented that this has vastly increased efficiency and things now move much more quickly than expected!

Death knell for outdoor clerking?

It will be interesting to see how the outdoor clerking industry will fare. At BLP we don’t have outdoor clerks. Our trainees attend court to issue, file and collect hard copy documents. Since 25 April 2017, we have seen a significant decline in the number of documents that need to be taken to court, but trainees still need to attend other courts that don’t (yet?) have CE-File, for example the Queen’s Bench Division, the Senior Costs Office and the Mayor’s and City of London Court. They also attend in person to lodge trial bundles, which must still be lodged in hard copy under Practice Direction 51O (PD 51O).

As far as I know, the counter staff in the Rolls Building haven’t been inundated with solicitors attending court with pieces of paper and begging them to make an exception. One trainee went to court asking for a stamped consent order and was politely told that it had been put up on CE-File. I always recommend that colleagues who need to issue or file documents for the first time telephone the court if they are experiencing any problems. Prior to 25 April this seemed to work well but, currently, it is sometimes difficult to get through to court staff. It seems everyone is in need of some help and guidance during this transitional stage.

Some changes are still required

Some useful guidance and advice can be found on-line. I have found the Users’ Guide to CE-File to be really helpful. However, there are still a number of changes that need to take place to further support compulsory electronic working.

New or revised PD 51O. We all expected some amendments to PD 51O to reflect the fact that use of CE-File is now compulsory for professional users. However, the expected update hasn’t yet materialised. I understand that ministerial approval is required and that the imminent general election has delayed that process. For now, professional users should follow the current version of PD 51O.

Rule changes and updates to court guides. The TCC guide, for example, refers to emailing the court, a practice which is no longer generally permitted except in certain limited circumstances (as set out in the Practice Note to PD 51O). It is essential that urgent communications to the court don’t get lost in a vast sea of “miscellaneous” filings.

Being able to email the judges’ clerks remains essential in certain situations, such as if your case settles at the weekend and you need to inform the judge before a hearing that starts the following Monday.

Appointment of administrators in the Bankruptcy and Companies Court. This is one area in which the rules are in urgent need of an update. Practitioners are currently required to file notices of intention to appoint an administrator and notices of appointment of an administrator in the Bankruptcy and Companies Court in London using CE-File. The appointment becomes effective when payment is made. However this throws up lots of questions. For example, there is a conflict with the Insolvency Rules which provide that holders of qualified floating charges can appoint an administrator by email or fax outside court opening hours, a distinction that should be irrelevant if electronic working is compulsory because registered users can file documents 24/7.

Final thoughts

I am sure that all of these issues are just teething problems and will be ironed out in due course. In addition, because the scheme is still a pilot, everyone who experiences any difficulties is encouraged to give feedback to the court service in order to help them to improve the system and to make it more effective.

The ball remains in our court.

Berwin Leighton Paisner LLP Melissa Moriarty

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