Should there be a co-ordination and review of court procedures with a view to promoting efficiency within a digital context?

• Author: Lord Justice Gillen
• Position: Northern Ireland Court of Appeal Intellectual
• Pages: 75-91

IRISH JUDICIAL STUDIES JOURNAL

[2018] Irish Judicial Studies Journal Vol 2(1) 75

SHOULD THERE BE A CO-ORDINATION AND REVIEW OF

COURT PROCEDURES WITH A VIEW TO PROMOTING

EFFICIENCY WITHIN A DIGITAL CONTEXT?

Lord Justice Gillen

Northern Ireland Court of Appeal

Introduction

Par les soirs bleus d’été, j’irai dans les sentiers,

Picoté par les blés, fouler l’herbe menue:

Rêveur, j’en sentirai la fraîcheur à mes pieds.

Je laisserai le vent baigner ma tête nue.

[Rimbaud ‘Sensation’]

That times and circumstances change, and require a re-examination of one’s

position was thematic to a lot of youthful, individualistic–asserting Romantic

artists and, dare I say it, appealing to an old romantic like me. Hence the theme

of my address today is captured in the first verse of Rimbaud’s poem ‘Sensation’.

To cater for my less romantic brethren and sisters may I also invoke Lord

Mansfield’s famous adage ‘As the usages of society alter, the law must adapt itself

to the various situations of mankind’

1

. It was a theme that we in Northern

Ireland strove to capture in a recent Civil Justice Review (CJR) which I was

privileged to lead.

August 2016 marked the twenty fifth anniversary of the world’s first website

going live. A quarter of a century later the web is dominated by social networks,

search engines and online shopping sites. From here we can expect to continue

to leak from the computer screen into the real world with the rise of the internet

of things, biometric confines, artificial intelligence and superfast speeds hailing a

new era for the World Wide Web.

Since the beginning of this century a fundamental change has occurred in society

in general and the law in particular with the advent of the digital era. We now, as

a matter of course, conduct many of our business arrangements, daily

communication functions and activities using tablets, smart phones and even

smart watches. Personal computers, the Internet, and all the collateral

consequences that followed from these innovations - such as laptops, notepads,

cell phones, smart phones, Facebook, YouTube, Google, Wikipedia, and Twitter

1

Barwell v Brooks [1784] 3 Dougl 371, 373

IRISH JUDICIAL STUDIES JOURNAL

[2018] Irish Judicial Studies Journal Vol 2(1) 76

- have radically changed the information world we live in today. The public not

only expects easy access to information, but also expects it to be instantaneous,

wherever one is located. Arguably, we in the legal profession are the last analogue

profession. Those who cling to the digital less past are gradually losing their

eccentric charm.

Hence to serve the needs of the 21st century society, the justice system must be

digital by default and design. We in the law must not get left behind and to that

extent a coordination and joint review of court procedures is crucial. The advent

of the photocopier, email, texting and our increasing propensity to communicate

with each other in written form has fed a tendency to put everything but the

kitchen sink into general disclosure in legal cases. History will record our current

subservience to mountains of paper as having the appearance of an absurd

Luddite fantasy. Sir Brian Leveson, President of the Queen’s Bench Division,

speaking in ‘Modernising justice through technology’ in June 2015 said: ‘We

cannot go on with this utterly outmoded way of working … it is a heavy handed,

duplicative, inefficient and costly way of doing our work’.

2

The Paperless or Digital Court

Every Judge in Northern Ireland and I suspect every judge here today –

particularly those engaged in family, judicial review, commercial, chancery or

clinical negligence cases – is well familiar with innumerable lever arch files

produced by the parties and copied several times, lined up in court but which

remain unopened or largely unreferred to during the course of lengthy trials. A

small proportion of what is often literally thousands of pages of disclosed

material bear some relevance to the case.

When the files are explored, one often finds that delving into them reveals a lack

of pagination, or worse still pagination that varies from party to party, an absence

of chronological ordering, photocopied documents which are blurred or cut off

with multiple vertical lines running down the pages, files which are not

adequately labelled, papers which have poor indexing or missing pages,

supplemented often by papers served at the last minute which are not contained

on the judge’s papers or the opposition papers. All of which creates a nightmare

for transportation or manipulation during the trial.

The continuing maturation of the digital age has created an environment where

court systems can maintain all or part of their information electronically. When

these electronic records are properly compiled and maintained with well-defined

2

Sir Brian Leveson, Président de Queen’s Bench Division, discours d'ouverture : « Mod ernising Justice through Technology »,

24 juin 2015.