Practical Law

Given that, from 1 April 2010, the e-working pilot scheme will become permanent, allowing parties to submit claims and take subsequent steps in the litigation electronically, now seems a good time to review what we have learnt so far from the pilot.

Since the pilot started, in the Technology and Construction Court (TCC):

• Over 30 law firms have filed documents electronically;
• 15% of all new cases have been filed electronically and a larger proportion of subsequent filings have been made electronically, as cases which started on paper move towards e working;
• 100% of cases are now electronic, as documents are scanned by the court on receipt;
• There are now a total of 227 cases in the system.

Some of the issues that have arisen during the pilot are related to access to the electronic court file, payment of fees online and whether the system really could cope with the size of documents involved.

Can I access the electronic court file?

The case reader (that is, the electronic court file created at the outset of a claim and updated throughout the life of the case), allows court staff and judges to access the complete court file electronically. By the end of March, the system will have been expanded so that the parties also have access to this electronic court file.  The challenge for the e-working team has been to ensure only the parties involved have access.

In terms of public access, the intention is for the system to allow non-parties to access the publicly available information held on the case reader by the end of March. Although this is simply an electronic version of the current system, such access will obviously have to be tightly controlled to ensure access is limited to those documents that non-parties are entitled to access.

Can I pay online?

One of the perceived major barriers to the wider take up of e-working has been the inability to pay court fees online as part of the e-working process. Although a claimant previously had the ability to submit claim forms online, the associated fees still had to be paid in the traditional manner, sending a real mixed message to users. Therefore, one of the most eagerly received updates will almost certainly be the provision of an online payment facility.

The e-working team is introducing a method for paying fees online by credit or debit card and this system is expected to be in place later this month.

Can the system cope if I need to submit multiple documents?

The limit on the size of documents that can be attached to the electronic forms has proved problematic. The limit was initially set at 10MB and, as all documents must be scanned and provided as a PDF when submitted, this limit caused issues where large or multiple documents were submitted. This limit has now been increased to 30MB, which will allow many more documents to be submitted.

Although this is a step in the right direction, if a complete e-working solution is to be adopted in the future along the lines that Jackson LJ has proposed (see below), this is still too restrictive and a solution will need to be found to allow large documents to be added to the electronic bundle as a matter of course.

So what are the benefits and what will the future hold?

There are a number of very real benefits for practitioners, in addition to the improvements outlined above. These benefits include:

• Dynamic PDF documents that will calculate the appropriate court fee or prompt the user to consider the practicalities of service out of the jurisdiction where necessary.
• The ability to have a claim form or other document issued outside normal court hours.
• Access to the case reader including all documents on the court file.

In his Review of Civil Litigation Costs: Final Report, Jackson LJ made some suggestions for the expansion of e-working to include court maintained bundles. The report notes that construction disputes are notoriously document-heavy and that e-working may be one method by which documents, and therefore costs, could be controlled.

The type of scheme suggested by Jackson LJ goes further than the existing electronic case file to add a complete electronic bundle. In much the same way as the current case reader system, this could be continually updated and would provide all parties with instant access to the up-to-date bundle.

I think this idea has great potential and I am keen to see further development in this area. A system that allows the parties to access and reference a central electronic bundle could lead to real gains in efficiency if implemented and managed properly, but would also require a change of practice from the users. I think that the successful adoption of such a scheme would require significant effort on the part of solicitors, barristers and their clients, in addition to the IT development required to the system itself. Electronic disclosure has been with us for some time now, but a fully integrated approach to electronic documents still seems some way off.

So will we all be e-working from April?

These changes are likely to improve the usability of the system and will, hopefully, broaden its appeal to encourage more court users to take advantage of e-working. It would certainly assist take up if the improvements are actually up and running by the time the scheme becomes permanent. It is important that the permanent scheme delivers its many benefits from the outset to avoid putting users off. In any event, with Jackson LJ on the case, it seems that e-working is not only here to stay but will become an integral part of litigation management in the future.