The case for and against an online dispute revolution

The internet, the modern means for doing almost anything, but what about solving disputes?

Online Dispute Resolution (‘ODR’) already exists (in relation to starting a claim only) in some forms e.g. money claim online. However, this year, an advisory group set up by the Civil Justice Council are going to explore the possibility of expanding ODR for disputes under £25,000.

Canada and the Netherlands currently offer systems of ODR and many have been using the popular auction website eBay's ODR system successfully for a number of years, resulting in over 60 million resolved disputes. So, is it time for us to jump on the bandwagon too?

It is easy to see the benefits of ODR, which aims to make the civil justice system more accessible, cost-effective and quick through e-negotiation and e-mediation.

Convenience is a substantial benefit of ODR, as disputes can be resolved from the comfort of one’s home where communication between both sides and mediators can occur at a flexible pace. This gives parties time to think carefully about what they want to say, eliminating the risk of things being said in the heat of the moment.

A further benefit from the extension of ODR will be to the courts that continually struggle with an increasing caseload. ODR will remove minor disputes and free up valuable Court resources.

Despite the benefits, ODR will also have disadvantages. One of the main benefits of mediation is face to face communication, allowing parties to show emotions connected with disputes and gauge each other's reactions. This element of human interaction often helps bring disputes to an end, which may mean that ODR may become harder to resolve.

Opponents of ODR argue that it creates a two tier system for solving disputes: one cheap and cheerful and the other expensive and exclusive. But this may not be a bad thing?

For substantial matters solicitor involvement and traditional court services are vital. However, for smaller disputes, solicitors’ involvement and court fees can often become disproportionate. Some argue that ODR is a technique to edge out lawyers but already many people with smaller disputes represent themselves as litigants in person. The expansion of ODR could implement a simple system to help those in these circumstances, not taking work away from solicitors but improving the system for those who would have never paid solicitors fees anyway.

ODR’s most substantial problem is that it assumes all parties will have internet access. An Office for National Statistics report in 2013 stated that 73% of adults in Great Britain accessed the internet every day, but what about the rest?  How many adults never have any access to the internet?  In addition, access to the internet is very different to having the ability to utilise any online system set up by the Civil Justice Council.   

As use of the internet expands, it seems logical to create efficient mechanisms of dispute resolution through this entity. Certainly for substantial or complex disputes, the traditional systems are required but an alternative ODR system for minor disputes will undoubtedly extend access to justice for parties involved in smaller disputes.

The litigation and dispute resolution practice group at B P Collins LLP is well equipped to deal with a dispute of any size. For further information and advice please contact a member of the team by calling 01753 279039 or emailing disputes@bpcollins.co.uk. 

Posted by Lucy Newman, trainee in the litigation and dispute resolution practice group.

Lucy graduated from the University of Nottingham in 2011 with a degree in Politics and American Studies (International Study). She went on to complete the Graduate Diploma in Law and Legal Practice Course at the University of Law (Bloomsbury).

After working as a paralegal in the Real Estate team for a large city law firm, Lucy joined B P Collins LLP in September 2014.

My first week as a trainee at B P Collins LLP

Now that week one is under my belt, I’ve found some time to look back and reflect on the things I’ve learnt so far as a new trainee at B P Collins.

It is always daunting starting a new job, especially when it's one that you’ve worked so hard to get, and by 9am on Monday morning the nerves had really kicked in. Thankfully, once I’d walked through the doors at Collins House, I was immediately put at ease by the number of faces I remembered from the assessment day a year before. Even better, many remembered me.

I had only been in the office for less than an hour when my supervisor said; “I’ve got a client meeting at 1pm, come along.” That was that; I was dictating attendance notes by the afternoon, drafting particulars of claim for a client the day after, and by Thursday I’d drafted my first witness statement. The B P Collins website says that the firm ‘are keen to test ability, aptitude and commitment from day one’ – and that couldn’t be more accurate.

It was refreshing to see that the ‘responsibility in a challenging yet friendly’ environment I had been promised all throughout the recruitment process is there for me to take advantage of. I had spent a long time looking at law firms through work experience placements and vacation schemes, so when I applied to B P Collins, I knew what I wanted from a law firm and it was these promises that really appealed to me. But with so many law firms promising so many things to prospective budding young lawyers, it’s always interesting to see whether they can live up to their word.

I once read a trainee brochure from a notorious magic circle firm professing to offer a healthy work/life balance and that amused me. Forgive the clichés, but I knew I wanted to be somewhere that I could learn quickly and would be trusted to work directly on matters alongside supportive colleagues, and so far that’s what I’ve experienced. For me, spending two years nursing paper cuts in a photocopying room is not a training contract well spent, and thankfully (so far as I can see), the firm share this philosophy.

Of course there will inevitably be a long bundling session thrown in now and then, and of course starting any new job carries the same frustrations; countless training sessions, spending hours getting to grips with the systems, processes and procedures, and most importantly, learning everyone’s name (it can be quite awkward when you’re looking at a partner’s picture on the intranet to find his name, for him to come up behind you and see his face on the screen). Hopefully it won’t take me too long to get there though.

All in all, I’ve had an exciting, interesting, informative and thoroughly fun first week, which was appropriately topped off with a drink or two in the local pub with colleagues to celebrate.

I am looking forward to what week two has in store for me.

Posted by Elizabeth Maxwell, trainee in the Litigation and Dispute resolution practice group.

Elizabeth graduated from Royal Holloway, University of London in 2008 with a degree in History and Politics. She went on to study the GDL at BPP London (Waterloo) and the LPC at the University of Law (Bloomsbury).

Mitchell on Mitchell – Why missing deadlines cause costly headlines

This February my training at B P Collins LLP has taken me, Rebecca Mitchell, to the litigation and dispute resolution practice group, where the name "Mitchell" frequently resonates around the group. You can imagine my concern as I hear my name repeated from across the room, but, thankfully, it is another Mitchell to whom they refer. Andrew Mitchell.

In the wake of the Court of Appeal's ground-breaking decision of Mitchell v News Group Newspapers Ltd (2013) EWCA Civ 1537 ("the Mitchell case"), there can be little doubt that a sea change in litigation is now occurring. A sea change initiated by the implementation of the Jackson Reforms on 1 April 2013. The Jackson Reforms are, in short, intended to change the way litigation is conducted by enforcing a new culture of strict compliance and controlling costs.

In the Mitchell case, Mr Mitchell's solicitors failed to serve a costs budget on time (six days late) and the High Court Master ruled that he was to be treated as having filed a cost budget for applicable court fees only (this is compared to the £506,425 sought). Mr Mitchell appealed, but the Court of Appeal refused to grant relief from the sanction imposed by the High Court Master and concluded that if the Court of Appeal were to overturn the decision “it is inevitable that the attempt to achieve a change in culture would receive a major setback... in time, legal representatives will become more efficient and will routinely comply with rules, practice directions and orders.”

As a LPC student I was taught to be meticulous in my approach to all court deadlines. The “clear days” rule 2.8 of the Civil Procedure Rules (CPR) was referred to at least once a class and, inevitably, a tired-looking student would be asked to count on a calendar to ensure that the correct date for a fictional deadline was understood by all of the class. In the case of Mitchell, the Master drew attention to the fact that failure to serve the costs budget in time resulted in her needing to vacate other appointments relating to asbestos claims. The effect of one party missing a deadline not only interrupted and delayed the Mitchell case, but also adversely affected other cases. The courts are inundated with cases and now, more than ever, it is essential for the legal profession to be efficient and streamlined to ensure that the court's time is put to best use.

Furthermore, the general consensus is that the principle “de minimis non curat lex” (the law is not concerned with trivial things) applies here as it applies in most areas of law and so the relief from sanctions of CPR rule 3.9 can still be relied upon where just and proportionate. The Court of Appeal in the Mitchell case upheld the Master's assertion that "we were too busy to file the schedule on time" is not a valid excuse intended to be covered by the "de minimis" principle.

The question now is how strictly should the courts enforce compliance? In an unreported case shortly before the Mitchell case, a Judge struck out the Claimant's costs budget because the phrase "[Statement of Truth]" was in square brackets which are not compliant to the mandatory requirements for a Statement of Truth pursuant to the CPR. The costs budget had been signed and dated in the appropriate way and, unlike in Mitchell, filed in time. Is it possible that the Court rules are being applied too vigorously?

The greater clarity and certainty that the new system provides is conducive to effective case management which, in turn, can only benefit the client and improve the reputation of the legal profession as a whole. However, the Courts must now strike a balance between establishing a culture of compliance and the necessity of leniency in appropriate cases. 

Phil Mitchell may have brought us drama and R.J. Mitchell the Spitfire, but Andrew Mitchell will be remembered for his role in reinforcing a new culture of strict compliance. 

Posted by Rebecca Mitchell, trainee in the Litigation and Dispute resolution practice group.

Rebecca started her training contract in September 2013 after graduating from Newcastle University with a 2:1 (BA Hons) in History. She undertook the Graduate Diploma in Law at Kaplan Law School and has recently completed the Legal Practice Course with distinction.