CIArb Features

Preserving hares, ODR and the rule of law

08 Jul 2019

In what remains of this Parliament two bills bear scrutiny and neither of them has anything to do with Brexit.  That in itself makes them worth considering.  One seeks to update a nineteenth-century law protecting hares during the course of the breeding season.  The other, quite possibly with greater relevance to members of the CIArb seeks to preserve the rule of law in the modern age.

The first hare I set running is concerned, as its preamble states: “to prohibit the killing or taking of hares during the breeding season; to repeal the Hares Preservation Act 1892; and for connected purposes”.  Seeking support for the Bill under the Ten Minute Rule its promoter, the Conservative MP for Camborne and Redruth, George Eustice explained that “one of the things that we all need to learn when we are first elected to the House is that it can be surprisingly difficult to get things done”.  The Bill is not yet published but those sage words have been and should perhaps be borne in mind in the context of another Bill. 

My second hare is further down the course, as it were, and approaches its Third Reading in the House of Lords.  The Courts and Tribunals (Online Procedure) Bill concern the creation of an online court.  

This bill seeks to establish Her Majesty’s Online Court or HMOC which will be responsible for such jurisdiction as may be assigned to it under a discrete procedural regime quite separate from the Civil Procedure Rules.  Clause 1 of the Bill provides for “specified proceedings” there are to be provisions for the online initiation of proceedings.  Clause 2 makes clear these proceedings could include:

(a) civil proceedings,

(b) family proceedings,

(c) proceedings in the First-tier Tribunal,

(d) proceedings in the Upper Tribunal,

(e) proceedings in employment tribunals, or

(f) proceedings in the Employment Appeal Tribunal  

Readers may be aware that in all of those jurisdictions there are already online means of initiating proceedings.  Of course in those situations, the online part comes to an end if proceedings are defended and the final disposal of the proceedings always take place in a physical court.

The purpose of the HMOC is to run a case entirely online and to have disposal which is online too.  Apparently, for that purpose, a separate set of procedural rules is required.  These are intended, according to clause 1(3) of the Bill to be:  

(a) practice and procedure under the rules are accessible and fair,

(b) the rules are both simple and simply expressed,

(c) disputes may be resolved quickly and efficiently under the rules, and

(d) the rules support the use of innovative methods of resolving disputes.

Laudable ambitions and one might be forgiven for thinking we have been here before.  During the Middle Ages, the Courts of Pied Poudre grew up outside the mainstream Court of the King to dispense speedy and local justice to local tradesmen the name originating in the flour covered feet or shoes of the bakers who frequented such courts.  Our system of Tribunals was set up during the last century for exactly the same reasons.  This outing of the idea is no different from those previous runnings.  On this occasion, there is to be a court outside the mainstream Courts but dispensing the same law as those courts.  The big difference is that unlike other iterations of this idea the mainstream Courts have managed to force a climbdown by the Government on the composition of the rule making body, the Online Procedure Rule Committee.  Now senior figures from the Judiciary are to be involved in making rules for HMOC.  The Government’s ambitions to create a rule making body run by civil servants have suffered a reverse in that the Online Procedure Rule Committee is now to have judicial figures on it and to include persons familiar with the lay advice sector and one person to have “IT experience”.    

What is of greater interest is the focus on “innovative methods of resolving disputes”.  This does not herald a return to a sanctions regime similar to that used in the Courts of Pied Poudre but the fact this is supposed to facilitate Online Dispute Resolution, something I discussed in the article published in eSolver last month.  This may well involve a hefty contribution from the mediation community to enable the work of the Court to be expedited.

Whilst aspects of this Bill may remind readers of the phrase “mad as a March Hare” other parts may repay attention by members of the CIArb and its ruling body.

Tony N Guise