Artificial Intelligence in the Administration of Justice

Computer-operated systems are increasingly used for decision-making in public administration and private enterprise. Activities that were reserved to humans because they required decision-making in varied and unpredictable circumstances may now be performed by artificial intelligence (AI). Machine learning is developing at such a pace that it is conceivable that algorithm-operated systems may be able to provide litigation services and even adjudication. Supplanting lawyers and judges by AI would have serious implications beyond the loss of jobs. AI lawyers and AI judges would change the adversarial system beyond recognition by reducing adjudication into one machine operation, putting an end to the visibility of court process, and eliminating the physical presence of the court. Court legitimacy would be undermined because AI adjudication would not be able to reflect human psychology; emotions, aspirations, beliefs or moral sensibility.

Disclosure

Lord Woolf’s Access to Justice Report took the view that disproportionate litigation costs were spent on discovery. The CPR was intended to change that. This short chapter examines the experience of CPR 31 over 20 years and considers whether it would it have been better to retain in substance RSC ord 24 (as for example Hong Kong has done)? Taking the rules on pre-action disclosure, non-party disclosure and inadvertent disclosure of privileged documents as examples, it argues that the reforms have been largely unsuccessful, and that we should have retained the substance of the former rules. Broad discovery obligations do not necessarily lead to excessive courts.

Lord Woolf, Multi-Party Situations, and Limitation Periods

More than twenty years ago, Lord Woolf MR recommended the implementation of a regime which could cater for opt-in or opt-out class actions. It was not until 1 October 2015 that such a regime was enacted—and solely for competition law grievances of either a follow-on or a stand-alone nature. A key aspect of any class action design is how to handle limitation periods for the representative claimant and for class members. In his seminal report, Lord Woolf flagged up that appropriate provisions for limitation periods would be a proper subject for primary, rather than secondary, legislation. Accordingly, limitation periods duly became the subject of careful drafting in the 2015 regime, courtesy of section 47E of the Competition Act 1998. This chapter reflects upon some of the key comparative drafting lessons of class action regimes elsewhere which were helpful and instructive for that drafting exercise.

The Use of Empirically Based Information when Reforming and Evaluating Judicial Review

This chapter traces the availability and use of empirically based evidence relating to judicial review in England and Wales. It considers how such evidence has been used by reformers of judicial review and those concerned to evaluate the effectiveness of reforms. Attitudes to empirical and statistical data have changed significantly since the early 20th century and the chapter traces this change in the context of judicial review. It is structured around the following phases: from the 1930s to the early 1960s which was typified by the absence of empirically based evidence and scepticism amongst legal academics regarding the value of such evidence; from the early 1960s to the mid-1980s during which the value of empirical evidence on judicial review emerged; the 1980s to the mid-2000s which saw a significant growth in the available empirical evidence; and finally, the period from the mid-2000s during which empirical and statistical evidence took centre stage when governments used statistically based justifications for limiting access to judicial review.

Proportionality and Search-based Disclosure

This chapter will consider whether standard disclosure based on what Practice Direction 31A calls a reasonable and proportionate search continues to be the most effective and efficient approach to providing documentation to opponents in civil litigation. It will consider the reforms made to the rules on disclosure as recommended by Lord Woolf, and more recent innovations. An underlying problem is the explosion of documentation produced in the digital age, and the knock-on impact in the later stages in litigation on costs in cases where there has been extensive disclosure. The chapter will look at lessons from the past, the present rules, and whether there are more proportionate solutions. It will consider whether disclosure in fast track litigation is out of step with the position in the High Court, and some of the important ideas contained in the Business and Property Courts disclosure pilot. It will argue that the time has come to revert to a modern version of Lord Woolf’s original recommendation that search-based disclosure should be a second stage disclosure process, and confined to cases where it can be justified in accordance with the overriding objective.

Taking Stock of the Collective Proceedings Regime in the Competition Appeal Tribunal—A Successful Compromise?

This chapter considers the UK collective proceedings regime for damages claims in respect of competition law breaches, which was first introduced in 2003 and significantly broadened in 2015. The regime aims to balance a desire to facilitate redress for victims of competition law infringements against the risk of frivolous or unmeritorious litigation (and the perceived excesses of the US class action system). By reference to the approach taken in the collective claims brought before the Competition Appeal Tribunal (CAT), this chapter examines how that balance has been struck in practice, and whether it can be said to be a successful compromise.

National Security, Closed Material Procedures, and Fair Trials

This chapter examines the arguments advanced against the extension of closed material procedures (CMPs) prior to the passage of the Justice and Security Act 2013. In the light of experience since the coming into force of that Act, it asks whether and to what extent the arguments against CMPs have been shown to be correct; whether and when CMPs are necessary; and whether and when they are capable of providing the ‘substantial measure of procedural justice’ their proponents promised. Any assessment of the degree to which CMPs give rise to procedural unfairness must be attentive to two factors: first, the degree to which the excluded party will be disadvantaged by being represented by a special advocate, rather than their own lawyer; and secondly, what is the alternative to a CMP. This leads to a mixed picture where CMPs can cause considerable unfairness in some cases, but in others it may be the only the way to effectively challenge a decision by way of judicial review.

A Core Irreducible Minimum? The Operation of the AF (No. 3)

The landmark House of Lords ruling in Home Secretary v AF (No. 3) [2009] UKHL 28 imposed a ‘core irreducible minimum’ of disclosure (the AF (No. 3) duty) to suspects challenging a control order in judicial review proceedings which necessitated a closed material procedure (CMP) for national security reasons. This chapter outlines the application and impact of that decision in respect of the many other types of proceedings which require a CMP in national security and related contexts. It argues that the judicial treatment of the duty has been inconsistent, meaning that the enhanced procedural protection offered by the AF (No. 3) duty is often not present when the circumstances faced by the litigant are the most serious.

Reforming Judicial Review Costs Rules in an Age of Austerity

This chapter explores the institutional dynamic surrounding recent attempts to reform judicial review procedure: a dynamic where the government is both the key designer of and the main ‘repeat player’ litigant in the same process. The chapter focuses on costs and it argues that, over a sustained period of time, the government’s responses to Sir Rupert Jackson’s landmark review’s recommendations on judicial review reveal a worrying tendency to proactively disengage with the range of evidence available, ignore independent proposals, and insulate its policy preferences from debate. The perverse upshot is that, parallel to an independent review that has sought to improve the accessibility of judicial review for claimants, the rules have been tilted further against them.

The Civil Procedure Rules Twenty Years On

Cost and delay have always been the two great challenges facing the civil justice system. Lord Woolf sought to address these issues with his recommendations, which were largely implemented in the Civil Procedure Rules (CPR) twenty years ago. Lord Justice Jackson again took up the challenge in his Review of Civil Litigation Costs ten years later, leading to further significant reforms. But the reform process is far from over, with the rules on disclosure and witness statements currently in the spotlight. This chapter considers how the CPR and the various reforms have worked in practice from the perspective of the commercial solicitor, and whether more needs to be done to address the challenges.