Good Governance - Effective use of IT

Written evidence submitted by Commercial Litigation Association (CLAN) (IT 47)

Summary

a) The procurement of IT in the civil justice system in England and Wales has been marked by a failure of leadership in terms of managing contracts to ensure best value for money.

b) This failure has led to an approach to procurement that ignores readily available solutions for in house developed solutions that have always ended costing the tax payer far more than an off the shelf solution would have cost principally because of the role and remuneration basis of consultants.

c) There has been no or too little engagement with users to inform the design of the project brief.

Introduction

1 The Commercial Litigation Association (CLAN) represents all those with an interest in the resolution of business disputes. Our membership is diverse and includes solicitors, barristers, trainee lawyers, academics, those businesses providing third party funding for the bringing of claims, costs lawyers and all others with an interest in this field. Our Patron is the Right Honourable the Lord Woolf of Barnes. Our web site address is: www.comlit.co.uk.

2 Our recent work in this area includes:

· Our submission to Lord Justice Jackson’s Review of Civil Litigation Costs in July 2009;

· A paper which he specifically requested CLAN to prepare on IT in the civil courts not only in England and Wales but overseas. This paper subsequently came to form the basis for Chapter 43 in Section 6 (Controlling the Costs of Litigation) of Lord Justice Jackson’s Final Report published in December 2009.

· We held a dedicated session at our Annual Conference in November 2010 considering e-Working and receiving presentations from HMCS’ e-Working team and a contractor, Visionhall Limited, who have installed a system in Dubai and elsewhere.

3 Prior to our November 2010 Annual Conference we undertook a survey of our members and others to explore the effectiveness of the e-Working solution which has been in place since 1 October 2010 and available as a pilot for some time before then. The results were analysed for the benefit of the conference and are attached to this submission. The results were not encouraging. Of those responding 63.7% considered e-Working to be either "bad" or "very bad". 36.3% were not prepared to commit an answer. Such results may be explained as the result of users’ experience of a pilot version of the system which suffered from difficulties. CLAN intends to repeat the survey during the first half of 2011 to test how well the system has been working since it was fully deployed at the RCJ from 1 October 2010.

4 CLAN has argued that the cost-effective delivery of access to justice can only be achieved by the use of modern technology in particular by providing effective access to the Court office for the purpose of filing court documents electronically and for reviewing documents which have already been filed. In other words by a system which enables the Court file to be as easily accessible and capable of use as a bank account. HMCS has called this Electronic Filing and Document Management (EFDM).

5 However, EFDM has led to a wide range of different solutions in different jurisdictions (e.g. the new Supreme Court) leading to duplicated effort and a leitmotiv of expensive method led (rather than output led) systems. Ultimately it was abandoned in favour of e-Working.

6 Building a bespoke system should not be necessary as there exist many proprietary systems which would provide a modern system for enabling access to the justice system to be achieved at a fraction of the (substantial) cost of the existing solution. Such a modern system (if properly procured) would also, we believe, bring with it significant cost reductions in terms of the running of the civil justice system. At a time when such reductions should be maximised we believe that a modest investment in effective IT could bring significant cost reductions.

Procuring the delivery of electronic working in the civil courts

7 The history of the procurement of an effective e-Working system for use in the civil justice system is poor, very expensive and ultimately disappointing. The robustness of the solution which has been procured has yet to be fully tested in our view despite having been years in development [1] .

8 These failings arise from a lack of clarity about the objects which the system was intended to achieve.

9 The software’s utilisation in the civil courts is limited to certain specialist courts in the Royal Courts of Justice which have relatively low levels of business compared to the wider system. The Access to Justice Director for IT (Paul Shipley) has confirmed to us that there are no plans to deploy e-Working nationally where the greatest cost reductions could be achieved. Perversely this pleases CLAN as the rigid working system adopted at the RCJ would inhibit national roll-out and we therefore urge the Government to procure a more cost-effective and flexible system for the national solution.

10 The very helpful Issues and Questions Paper issued by the PASC states that "Information technology is now ubiquitous". Whilst that is the case in the civil justice system the availability of effective IT systems is sorely lacking. Some examples follow:

a) Judges often lack access to computers whether laptop or desk top

b) There is no on line access to a Court file

c) Electronic filing in the sense that one can attach a court document to the relevant court file is not available so that documents are emailed to the Courts where those emails are printed and the printed versions placed with the Court file. Not much advance

d) Electronic disclosure of documents is becoming almost ubiquitous as commerce has driven business to adopt electronic methods of working. Yet the civil justice system lacks the means whereby such material can be reviewed and considered effectively (that is to say electronically) during the course of a trial. Unless, of course, the parties themselves pay for the installation of appropriate equipment in the court.

e) Manchester Civil Justice Centre is one of the most modern and well-equipped court buildings in the country yet it lacks any form of proper e-filing system.

f) Increasingly more and more judges are familiar with electronic methods of working but lack the means to effectively case manage a case for want of a simple and effective system of electronic file.

There are many other criticisms that could be made yet these will hopefully serve to illustrate the point that years of procurement of IT solutions in the civil justice system have not led to basic issues such as those summarised above being addressed. Given the millions of pounds spent on such exercises it is nothing short of a national disgrace. Ultimately the system of procurement is a question for Government and the failure to have an effective national system of IT in 2011 is a product of failed leadership. Meanwhile other jurisdictions such as: Austria, Dubai, New York State, Singapore, the State of Texas, Turkey and elsewhere have had effective systems for years without spending the millions spent in our country and within timeframes that are far shorter from start to finish.

11 Another unnecessary complicating feature which has been the focus upon the Government Secure Intranet (the GSI) as an excuse for not allowing a straightforward, uncomplicated procurement exercise to lead to a solution being bought off the shelf. The GSI exists to protect Government departments from attack. What is often not sufficiently appreciated is that whilst the Courts are run by a Government department (MoJ) they are not within Government. They are in fact within the public domain and must be in order to enable the citizen to engage with the Courts. The GSI is therefore a hindrance to access to justice insofar as the citizen’s engagement with the Courts Is positively impeded by the requirement to design systems within the GSI. Such a requirement adds significantly to the cost of such systems.

Specific questions raised by the Issues and Questions Paper

12 Our responses to these are outlined below adopting the numbering in the paper:

1 How well is technology policy co-ordinated across Government?

We can only speak of our experience of observing the delivery of technology policy at the Lord Chancellor’s Department and in its different incarnations since the early 1990s. The failure to have an effective system of IT giving access to the civil courts for all users is testament to its poor co-ordination in the civil justice system.

2 How effective are its governance arrangements

Poor. Projects are constantly being developed only to be abandoned for reasons which are rarely made clear to the civil justice community. Frustration has developed within the user community and a deep sense of despair that anything effective will ever be delivered.

3 Have past lessons been learned from NAO and OGC reviews about unsuccessful IT programmes?

This cannot be seen from the limited perspective of court users of the civil justice system. The lessons learned form those reviews seem largely to have been ignored as bespoke systems are developed at huge cost then abandoned only for new bespoke systems to be developed in their place.

4 How well is IT used in the design, delivery and improvement of public services?

There is a marked dis-connect evident in civil justice between users and the civil servants developing systems. Limited contact has been made with users in terms of the Government gaining an understanding of the type of system wanted by the user community.

IT could improve this but until such time as the MoJ decide that the users’ voice has a relevance the role of IT in gaining insights into what users actually want is unlikely to be prominent.

5 What role should IT play in a "post bureaucratic age"?

IT should enable access to the civil courts in a way which is not deterred by a firewall such as the GSI preventing the development of cost-effective systems that could transform the delivery of access to the civil courts.

6 What skills does Government have and what are those it must develop in order to acquire IT capability?

MoJ must first design from universal need not unilateral vision.

Consultation in relation to the national roll out of any IT solution must first take account of users’ needs. CLAN has proposed a pilot of an off the shelf system in Manchester to explore how costly and/or difficult it would be to provide a system that will deliver the required outputs without the angst that has accompanied EFDM and e-Working.

7 How well do current procurement practices and policies work?

Badly as the history of IT procurement in the civil justice system testifies. Specialist jurisdictions in the Royal Courts of Justice have a system called e-Working which is base don emails rather than the obvious need for a system base don access to the Court file via the internet as one would access a ban account.

8 What infrastructure, data or other assets does Government need to own, or to control directly, in order to make effective use of IT?

The system we seek is not based on complicated, cutting-edge technologies but makes use of existing software programs which are readily available. There has to be an engagement with such programs.

9 How will public sector IT adapt to the new "age of austerity"?

The civil justice system has many opportunities to adjust to the new age of austerity. Cost-effective off the shelf systems are available now and could save millions of pounds in terms of budget whilst delivering real outcomes. In addition the concept of Cloud Computing is worth considering.

10 How well does Government take advantage of new technological developments and external expertise?

There has been too great a readiness on the part of Government to recruit consultants ready to develop new solutions which lead to a greater need for consultant input. This is all led by fees and because such consultants have briefs which are poorly drafted with limited input from users this approach also leads to considerable cost for very limited return, if any.

The starting point must be with a small and focussed design team within Government who begin with the needs of the users and seek ways in which to gain their experiences and insights. There has been too little engagement with Court users in this context.

11 How appropriate is the Government’s existing approach to information security, information assurance and privacy?

The over-reliance on the GSI has undoubtedly hindered the citizen’s access to justice and a new approach must be considered at the same time as off the shelf solutions are being considered.

12 How well does the UK compare to other countries with regard to Government procurement and application of IT systems?

Very badly. In this paper we have already listed jurisdictions which are far ahead of England and Wales in their provision for their civil courts. Valuable lessons could be learned from places such as Austria and Dubai.

Robert Musgrove, the former Chief Executive of the Civil Justice Council, has been recruited to act as Chief Executive of the new Qatari Financial Courts and is actively procuring an IT system to serve his court system. He is likely to be in a position to provide valuable insights about the procurement process whilst also understanding the limitations of the civil courts systems in this jurisdiction.

January 2011


[1] HMCS would dispute the reference to years but that can only be done by referring to the current solution (e-Working) which is of relatively recent origin. However, that would be to ignore the many failed projects (e.g. EFDM) which have not come to fruition for one reason or another typically attributable to a failure of confidence in terms of funding commitments and/or controlling the design brief.