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

AuthorLord Justice Gillen
PositionNorthern Ireland Court of Appeal Intellectual
Pages75-91
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, individualisticasserting 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.

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