Practical Law

Being a lawyer in 2015 is, for the most part, a 24/7, modern and instant affair. Drafts of contracts are exchanged in seconds, letters drafted and exchanged without the need to wait for the post (or DX) to be collected and pleadings served remotely in the early hours. Clients benefit too, as they can reach their legal representatives at any time via the joys of mobile email technology.

While many private practice firms have moved with the times, it sometimes feels like the court system and its offices, which close at 4.00 pm without fail, have not. However, the times are-a-changing and the TCC is at the forefront.

Electronic working in the TCC

In a recent speech, Michael Gove, Minister for Justice, emphasised the need to move away from an old fashioned court system where “dedicated court staff cope with snow drifts of paper, archaic IT systems and cumbersome processes” and to “give all parties the ability to submit and consider information online”, in the interests of making the court system, as a whole, more efficient and accessible.

The new electronic filing system, CE-File, for issuing and storing case files that went live at the Rolls Building on 16 June 2015 does just that. The TCC has moved swiftly. All existing paper case files have already been migrated over to the new system and all cases are available electronically. Case files are not open to the public (public access will be the subject of separate software), but are available to the parties, their representatives and the court.

The system, which has been tried and tested across 40 courts in the USA, is easy to use. All you have to do to gain access is to log on and electronically file a letter saying that you act for one of the parties. Once your filing is approved by the court clerks, you are given access to the case file. Using your online case file, you can see if your new opponent has filed an acknowledgement of service or defence and you have an “at a glance” record of all of the documents filed with the court to date. Even the least tech savvy among us should be able to navigate the system.

Procedure is in PD 51J

The procedure for filing documents electronically in the TCC is set out in Practice Direction 51J. According to PD 51J (and as you would expect from an electronic system), the scheme operates 24 hours a day and all year round, including weekends and bank holidays. The key advantage to this is clearly that forms and documents can be filed outside of normal court office opening hours. This could help you out if you are handed a tricky situation. For example, you could issue a claim at 11:59 pm on the evening that the claim’s limitation period expires. Obviously this is not recommended, but you get the drift!

Easy, quick and less bureaucratic, but…

The new system makes the court system easier, quicker and less bureaucratic and it’s an opportunity to save ourselves time and our clients’ money. Therefore, it is surprising that while both the new system and the TCC are ready to provide these time saving and efficient measures, it seems that we lawyers are not.

To date, no one has issued a new claim using the court’s electronic system and only 11 tech savvy people (including this firm) have saved themselves the trip to Fetter Lane by filing documents electronically on existing claims. So why the slow take-up?

For starters, there are some teething problems with the system that still need to be dealt with when the system is updated in the autumn. For example, there is currently no space for the parties, or more pertinently their representing firms, to add a unique case reference number when making payment of court fees online. Perhaps we are nit-picking, but if a firm’s finance and accounting team cannot allocate the payment of court fees to a client file using the new system, it does make things more challenging. In practice, this may provide one possible explanation as to why no-one has issued a new claim under the new system yet.

Second, there is a prescribed ten megabyte limit on any form or document filed with the new system. PD 51J instructs parties seeking to file a document exceeding this limit to contact the TCC Registry at the Rolls Building. Given that this limit is being applied to individual documents, as well as complete bundles, this could cause problems when filing a document such as a witness statement containing photographs, plans or other compendious exhibits.

Of course there will be the odd glitch. It is the same with the roll out of any new or upgraded technology – Windows Vista anyone? But, for that reason, it is important for fee earners in private practice to get to grips with the system proactively and to offer up feedback and suggestions during this pilot phase. We have the opportunity now to influence future changes to the system. The system’s potential should start to be realised once any initial technical problems are ironed out and changes made as part of the planned update to the system in the autumn, when it is rolled out to all courts within the Rolls Building.

Perhaps the reluctance of construction lawyers to grapple with the new technology stems from the fact that the TCC’s previous attempt at implementing an electronic system never really got off the ground. Bugs in the system weren’t ironed out, users couldn’t initially pay online and did not have full electronic access to the documents on the court file. It is not surprising that enthusiasm for the old system quickly waned, and it was quietly shut down in April 2012, with court staff and lawyers alike going back to the tried and tested paper files.

This time though, the brave new electronic world is here to stay. The new system is a far cry from the first e-working scheme and if we are not already using it, we should be. It has the potential to make efficiency gains for the courts, solicitors, clients and the public purse. The ball really is in our court now if those gains are to be realised.