September 25 2020

The viability of online Courts (Part Two)

Kristi Erasmus

Given the 4.57 billion global active internet users, representing 59% of the global population, with 4.17 billion users accessing the internet primarily through their mobile phones, it can be concluded that the successful implementation and operation of online courts globally is a viable and realistic future. Online courts promise to increase access to justice by removing barriers that prevent attendance at court and providing faster, more timely, more efficient access to justice, reflected in lower legal fees and costs and the faster resolution and completion of legal disputes, ultimately providing all with access to justice, irrespective of their country of origin, income or wealth ranking. The first part is to be found here

* * *

Considering the online court systems as they have been incorporated across the globe during the Covid19 pandemic, and also the research and studies that have been published on the functioning of the same, certain advantages and disadvantages can be identified.

Online Courts will provide greater access to courts, eliminating all physical barriers that may prevent one from physically attending court. These may include difficulty in accessing the court given the remote or rural area in which one of the litigating parties may live, high transport costs that may have to be incurred in getting to court or additional accommodation costs that will have to be paid should the court case take place over a couple of days and not be immediately finalized. Additional online courts will provide a faster, cheaper and more convenient method to access justice and enforce rights or remedies, avoiding unnecessary delays, legal costs and expenses. Besides, an online court would free up the court role for more serious offences and ease existing backlogs in cases to be heard by the Court as the online court is suitable for small civil cases and disputes. Thus, serious offences and complex legal disputes could be reserved for trial in court while smaller, less complex civil cases and minor offences can be dealt with online. Additional benefits of an online court system would include Orderly file keeping and record retrieval, easy access to court documents, files, pleading notices by all interested parties and a clear register on persons authorized and/or permitted to access files, recording the identity of any authorized access.

However, as referred to above, certain disadvantages have also been highlighted, such as the fact that online court proceedings are not suitable for serious or complex offences, any matter involving minor children or where privacy is a concern. There is also apprehension as to the openness and transparency of court proceedings and a presiding officers’ consideration of the facts before his/her and the final judgement is made. Also, there are concerns that a claimant, litigant or another interested party could be prejudiced where they require an interpreter and one cannot be assigned to sit next to them and translate proceedings. Furthermore, a Legal Practitioner / Counsel may not be able to consult with the client in private nor be able to ensure the client understands legal proceedings by explaining anything the client may not be certain of. And lastly, given the increase and ease with which cybersecurity breaches occur, privacy and security are real concerns.

Despite the disadvantages that have been identified, solutions to each can easily be provided to address any concerns or apprehensions that parties may have. Court rules or directives could be issued making it compulsory for only serious and/or complex matters, matters involving minor children or matters where privacy is a concern to be dealt with in court by physical attendance of all interested parties, while all minor offences and small civil claims or interlocutory proceedings are only to be dealt with online, establishing clear guidelines as to the jurisdiction of our courts as many countries already have in place regarding the value or type of case and by which court it may be heard.

Concerns regarding the openness and transparency of court proceedings is not a valid concern given that various applications are considered in chambers and not open court, which does not give rise to any questions on the openness and transparency of the presiding officers reasoning and judgement. Additionally, the presiding officers demure and approach would be open for all interested parties to see on the online virtual court hearing platform and the presiding officers reasoning and application of the law to the facts would be recorded and set out in his/her written judgment, meaning that his/her approach to the case is open and transparent to all parties.

Language barriers can be resolved by determining whether there is a need for an interpreter during pretrial proceedings and if so, linking an Interpreter to the online proceedings, as is common in parliament and international conferences, alternatively, the platform via which the online court proceedings are offered could be coded to provide subtitles in different languages or a translate function.

With regard to ensuring that a client and legal representative are able to communicate in private in confidence, it should be noted that most virtual conferencing rooms offer breakaway rooms. And where they are not suitable and a private consult face to face is required, a break or postponement may be requested and consultations can proceed as would normally, outside the courtroom.

With regard to uncertainties as to court proceedings or client(s) seeking an explanation, comments can be sent directly in private on the virtual conferencing platform to a legal representative and general questions can be placed in the comment box, with could be answered by the clerk or registrar of the court.

Lastly, regarding concerns on security and privacy of proceedings and litigating parties data, any one of the various privacy and security software available could be incorporated into the Court online Platform, which itself could also be coded to provide the highest privacy settings and only permitting interested parties to access to the proceedings or court documents relating to same.

In conclusion, as noted by Richard Susskind, despite the common belief being that lawyers and legal practitioners are firmly entrenched in traditional practices and are hard-pressed for change, the Covid19 impact has challenged this as a misconception given the speed and ease with which the legal field adjusted to lockdown and self-isolation policies by enabling court process to proceed via what has been termed “Online Courts.”

Article author:
Kristi Erasmus

Leave a comment: