Practical Law

Last Thursday, members of TeCSA and TECBAR came together at their annual joint conference to discuss the subject of “E-disclosure and e-working in the TCC”.

The excellent line-up of speakers included included Mr Justice Akenhead, who delivered an update from the TCC, and Mr Justice Edwards-Stuart, who reported on e-working in the TCC. This post summarises the highlights of Mr Justice Edwards-Stuart’s talk and related questions from the floor.

Mr Justice Edwards-Stuart opened boldly with a quote from a World War 1 general, likening the situation to a hard fought battle: “Hard pressed on my right. My centre is yielding. Impossible to manoeuvre. Situation excellent. I am attacking.” Regrettably, he explained the news is not as good as one would hope, but we were reassured that all bugs in the system are being ironed out and the future is bright. We are counter-attacking.

Can I pay online yet?

The judge recognised that the ongoing problems with the online payment arrangements continued to act as a disincentive for parties to file a claim electronically. He confirmed that these problems have now been resolved and the system will be up and running when the TCC takes up its new residence in the Rolls Building this autumn.

These may be eerily familiar words to regular readers of PLC blogs, but certainly if the online payment facility really will be up and running “very shortly”, this is good news indeed. The inability to pay court fees online is undoubtedly a major drawback for those of us eager to explore the full benefits of the e-working process.

So what are the current and future benefits of e-working?

Electronic access currently allows for the relevant forms to be accessed online and automatically populated with the party and claim number details. While this saves the user the time and effort of locating a paper copy of the form and completing it manually, it is difficult to attach any substantial time and cost advantage to these gains.

Currently, even if a claim is not filed electronically, the TCC is continuing to scan all documents received (aside from witness statements and the exhibits to witness statements, which are frequently bulky and in an A3 format that cannot be scanned by present facilities), making electronic filing possible.

The next step will be to enable court users to access the system in order to view the court case file and, in due course, to have access to the documents that have been filed, rather than merely the ability to file a particular document. There will still be a limited (administrative) part of the file which parties cannot see, but generally all exchanges between the court and the parties, and the pleadings, will be available electronically. Later, following a question from the floor, Mr Justice Akenhead explained that the hold-up is really in finding a system that is acceptable to the Chancery Division and the Commercial Court: “if it was just the TCC, I think we’d be there”. He estimates that users should have the ability to see the court file by the autumn, although this time-frame was given on a “no sue” basis!

The move to the Rolls Building will also see courts equipped with computer terminals that will give judges immediate access to court diaries when dealing with case management conferences and a computerised court register of issued cases that members of the public can search.

How secure is e-working?

A question from the floor raised the issue of security, with the concern that documents available electronically could potentially be leaked and circulated very rapidly. Mr Justice Akenhead answered that all case files will be encrypted and password-protected, so the information will not be readily accessible to all. He commented that, aside from cases of national security and public policy (where additional security measures would need to be put in place), this should not be a major concern given that most documents are in the public domain anyway.

How many parties are actually using e-working?

At present, only about 10% of cases are either filed electronically from the outset or, having been filed by hand initially, are being filed electronically thereafter. These statistics indicate that the current benefits of e-working are not seen as persuasive enough to encourage a sizeable number of court users to take advantage of the process.

If anything, take-up may be lower now than it was before the pilot scheme became permanent early last year (see Ben Mullard’s blog post of 3 February 2010). This could be an indication that once-optimistic users have grown frustrated waiting for the full benefits of e-working to be made available. It is difficult to muster enthusiasm for a process that one cannot see through from start to finish.

Once parties are able to file a claim electronically, pay the court fee online and have electronic access to the case reader (including all documents on the court file), the popularity of e-working should see a major surge. Until then, it is a bit like being offered only a very limited profile on Facebook, without any access to the real benefits of sharing photographs and status updates with other users.

A plea from the TCC

Leaving technology aside, one of the problems currently facing the TCC is that parties send documents to the court using multiple methods. Often, parties will issue documents by e-mail, followed by a letter and then a fax. This means different members of the court staff unwittingly duplicate work (as they scan or transfer information onto the system) that has already been done by another member of staff.

Mr Justice Edwards-Stuart issued this message:

• It would be of great assistance to the court if parties could use one method of communication only.
• E-mail is the preferred method of communication (as reflected in the TCC Guide).
• If you do send documents sent by e-mail, you will have the comfort of an e-mail back confirming receipt.
• If you absolutely have to send documents by hard copy that have already been sent by e-mail, please ensure these are clearly marked to this effect.

We have said it before, but it’s true: with just a little more progress on the e-working system, the future does indeed look bright.