Much progress has been made in recent years, helped along by the large-scale adoption of remote hearings during the COVID pandemic, to advance the digitisation of processes in courts and tribunals. It is envisaged for the justice system as a whole that these processes will be operated entirely on a smart digital system. But what of the Business and Property Courts in particular and, specifically, how is it envisaged that artificial intelligence ("AI") will be utilised?

As set out in the relevant Practice Direction of the Civil Procedure Rules, the Business and Property Courts ("B&PCs") are comprised of, “The Chancery Division of the High Court, the Commercial Court, the Technology and Construction Court, the Circuit Commercial Court, and the Admiralty Court located in the Royal Courts of Justice, Rolls Building together with the Chancery Division of the High Court, the Technology and Construction Court and the Circuit Commercial Courts in the District Registries of the High Court in Birmingham, Bristol, Leeds, Liverpool, Manchester, Newcastle and Cardiff ”.

There has been much progress in recent years to digitise courts and tribunals, using technology to streamline processes and facilitate access to justice. This includes pilots for the online issue and management of claims (the Online Civil Money Claims Pilot, the Damages Claims Pilot and the Small Claims Paper Determination Pilot). However, whilst strides forwards have been made in the B&PCs such as the introduction of CE-file (providing for the electronic logging of court documents and issuing of court orders), an increasing use of real-time transcription and electronic bundles, plus the frequent use of remote hearings for procedural hearings and applications, more can be done to use technology in these courts and associated processes.

In a recent speech, the Master of the Rolls and Head of Civil Justice in England and Wales, Sir Geoffrey Vos, addressed how further digitisation of the claims process and use of AI could benefit the B&PCs and the larger cases dealt with in these courts:

A digital justice system

It is envisaged that all civil, family and tribunal litigation will be undertaken through an online system, including the significant cases (both in value and complexity) which are litigated in the B&PCs. The Master of the Rolls emphasised that this modernisation should be done without delay and that the B&PCs should “lead the revolution in digital justice”, enhancing their international reputation for commercial dispute resolution in doing so. The intention is to achieve “end-to-end online case management". He explained that the digital justice system would go beyond online filing to encompass “online case management, online orders, online hearing bundles and ultimately online applications and enforcement”. What this will actually look like in practice in the B&PCs is still to be determined. 

Use of AI in the B&PCs

The Master of the Rolls stated that the digitisation of the B&PCs “must make maximum use of available AI technologies and of smart systems”, with the purpose being to reduce unnecessary costs and delay. He referred to generative AI tools which can provide quick answers to legal questions and quickly interrogate and summarise large amounts of data (including disclosure), making dispute resolution tasks quicker and easier.  Reducing the time taken to perform large-scale tasks typically undertaken by more junior fee earners will serve to reduce associated costs, even when factoring in the necessary checks of any automated processes. As well as the ability of AI to process masses of data, he also acknowledged that AI can help to identify the issues which need to be determined and can even suggest appropriate solutions.

Previously, the Master of the Rolls has suggested that integrated alternative dispute resolution processes “can and should be driven by AI, so that the parties are faced with regular logical proposals for the resolution of their dispute" and commented that this kind of intervention is likely to increase quickly. Whether this will include “Early Legal Services and Advice” being provided by AI as part of the earlier stages of the court process in every claim (including in the B&PCs), or just in smaller claims where parties may be more likely to be unrepresented, remains to be seen.

The Master of the Rolls also previously predicted that AI may be used to make some judicial decisions. This was seen in practice when a Court of Appeal Judge used ChatGPT to produce a summary of an area of law which he transposed into his judgment commenting that the tool was “jolly useful”.

The President of the Supreme Court of the United Kingdom has also recognised that it is possible that greater access to legal analytics tools which accurately predict case outcomes, could mean that more claims settle before actually reaching the courts in the first place. He also noted how AI is being used in the Supreme Court to produce transcripts of oral hearings, and in other European courts, with the latter using AI to link legal citations to legal databases, anonymise judgments, detect connected cases and to prepare summaries of judgments.

As is increasingly being recognised by the judiciary, there are clear benefits to increased digitisation, automation and AI – whether it be reducing the administrative burden on those working in the legal sector (and limiting the attendant costs for clients of the same) or facilitating access to justice by eliminating or reducing the legal costs of those seeking legal advice and/or looking to litigate and making the system easier for them to navigate. However, while using digital services and AI to streamline process and procedural matters is a positive step, we suspect it will take a while for practitioners, those seeking legal advice and court users to have confidence in automation for more substantive matters of legal advice and litigation strategy which are likely to be needed for matters progressing in the B&PCs. But in our view, we are on an upward curve and provided appropriate caution is exercised to ensure the implementation of appropriate safeguards, we consider that digitisation and AI should be embraced to promote the efficient and cost proportionate resolution of disputes both in and out of the B&PCs.  

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