Monster Modernisation Programme on the loose!

According to The National Audit Office (NAO) the civil court reform programme is running out of time and money.?Will more of either be given???

Big Projects for Big Problems

The publication, on 23 February 2023, of another NAO report on what is called (since 2016) the Modernisation Programme, brought more excoriating criticism of a project seemingly doomed.?The NAO Report reviews progress in digitising the courts achieved by His Majesty’s Courts and Tribunals Service (HMCTS) as at November 2022.

Issues identified by the Report include:

? Over-runs on budgets

? Poor (or missing) specification of work

? Poor execution of work?

? Work done had to be scrapped

? Delivery timetables described as “fantasy”

These criticisms are taken from the Report but are criticisms common to almost all “Big Projects”.??

The same criticisms can be found in NAO reports about:

? The building of the British Library (24 years overdue when it opened in 1997, using what was then cutting-edge technology and ￡46m over budget); and,

? Crossrail (5 years overdue, cutting edge technology featured again and ￡4bn over budget)

The final conclusion of the Report sums up the response to complaints by the NAO given by all the UK projects mentioned above:

“HMCTS told [the NAO] it is confident it will achieve the benefits of reform but that it may require a longer timeframe than expected.” (p. 50 of the NAO’s Report on the Modernisation Programme)

No country anywhere in the world has attempted to digitise a justice system from end-to-end.??

Cost-benefit analysis

What are the benefits??Faster case journey from start to finish? The ability of all users, citizen and professional lawyer alike, to access the services they need when and where they need them??Increased tax receipts??Or a reduction in unit cost??Unit Cost is the test HMCTS adopted during the Pandemic to assess value for money and benefit.?The measure was adopted, as the NAO Report says “…partly because [HMCTS] could no longer measure benefits in terms of staff reduction, given the staff increases required to respond to the COVID-19 pandemic.” (p.43, para 3.5)

Furthermore, once the Pre-Action phase is digitised (see a discussion about this next stage of the reforms below) with mandatory mediation in Pre-Action the number of cases in the CFT will reduce significantly.?This means Unit Cost will increase.?A perverse outcome but one already observed – when the number of issued cases fell during Lockdown, see para 3.6 on p. 43 of the NAO Report.

For all those reasons Unit Cost is a broken measure, a distraction of which HMCTS would be well rid.??

Utilitarianism is the key to showing value in a value-driven project

All reform should be evaluated according to Utilitarian principles as developed by John Stuart Mill, Jeremy Bentham and others.?Namely, that reform should be optimised to realise the greatest utility or happiness for most people.??

In place of Unit Cost I suggest three tests or Points of Coherence to evaluate whether the Modernisation Programme delivers value for money and tangible benefit:

? Are cases moving through the system at a quicker pace??The time to final hearing data is already available as a benchmark;

? Is the Backlog of cases reducing??Using empirical data in June 2020 we demonstrated the scale of the Backlog in the CFT; and,

? The views of users such as: Judges, Lay users, lawyers and administrative staff?

As the Comptroller and Auditor General of the NAO, Gareth Davies, has said: “[HMCTS] must … develop its approach to benefits realisation to secure value for money from the ￡1.3 billion of taxpayers’ money it has invested.”

The ghosts of reforms past

The Modernisation Programme is the third and most ambitious attempt to digitise CFT.?If either of the previous two attempts had succeeded the Modernisation Programme would not have to be so ambitious.?It could have built on foundations laid in 2006 or 2014; as happened in many of the courts in the USA which deployed efiling solutions around 2006.?However we are not in that place; hand-wringing about “what might have been” solves nothing today.

Digitisation of CFT is a laudable ambition which has been, at times, badly managed but despite all that is delivering significant achievements.?Many of the platforms it promised have been launched and are in use every day and have been for some years.?Flagship examples are Online Civil Money Claims (OCMC) and the Damages Claim Portal (DCP).?These are platforms that HMCTS built from the ground up.??

Thousands of users are using and have used those platforms.?They are intuitive and easy to navigate.?They work.??

Midst the gloom good news

Understandably much recent comment and Press coverage focused on the NAO report.?Barely any coverage has been paid to another publication that was issued on the same day (23 Feb).?This is the Chair’s Summary of proceedings at the Strategic Engagement Group Meeting on 14 February.?This Group brings together “members of the Bar Council, Law Society and Chartered Institute of Legal Executives with the jurisdictional leads for the HMCTS reform programme and HMCTS corporate relations team for …. [a] bi-monthly update and discussion.”??The Summary is well worth reading for the latest news of positive progress with the Modernisation Programme.

From that Summary we gain a different perspective.?We read that OCMC and DCP continue to be built out to encompass the entire court journey.?We also learn that functionality due to Go Live in March 2023 includes default judgments and directions delivered online.?As part of that upgrade law firms will also be able to issue interlocutory applications online.

Tackling threats, realising opportunities

Immediate threats include:

? The Modernisation Programme was not completed by March 2023 nor by December 2023, being the end of the 9 month Contingency Period provided for in HMCTS’ April 2021 revised Business Case.?A time extension is required.?It should be granted.??

? The budget is running out.?More budget will have to be found.?What price the Rule of Law??What price improved transport infrastructure??What price a single home for the British Library???

? Time is to be spent trying to persuade HM Treasury to allow underspent budgets from previous years to be spent now.?The underspends were refused by HM Treasury before.? Once they’re gone, they’re gone.??

? Without more time and money the digitised system will not deliver enormous financial benefits for the country.?One study has shown that around ￡12.4 billion every year is tied up in disputes involving small businesses alone.?That is a lot of Corporation Tax and VAT.

Toward a brighter tomorrow

The MoJ recently confirmed that “We continue to explore design of a future civil, family and tribunal system that can link existing and newly developed online systems together and embed more widely the principle of addressing legal need at the appropriate level; helping parties avoid the time, cost and stress of a court battle, and enable the delivery of an efficient and sustainable civil justice system.”?

In other words digitisation of the Pre-Action phase of CFT proceedings.?This exciting project is moving forward delivered by the private sector using platforms such as DisputesEfiling (DEF).?The Points of Coherence we sketched out above will be most perfectly met following the digitisation of Pre-Action which is the stage of the dispute resolution journey that will demonstrate tangible value for money and benefits throughout the dispute resolution journey.

Onward!?

Before we begin lamenting what could be the passage of 30 years to deliver effective IT in the CFT let us retain a sense of perspective and history.?It took 35 years to fuse the Common Law with equity.??

Let us find solutions to present difficulties, and, by so doing, finish the job!?