The next potential technological reforms in English Civil litigation: The Vos reforms?

I am inspired to write this article, as the various technological evolution continues to take place, particularly in LawTech, which I believe is the appropriate word to use. This Part touched upon by the Master of Rolls, Sir Geoffrey Vos in his recent speeches.

There are strong indicators pointing that we are on the cusp of new reforms to English civil litigation system. It is very likely to be quite an enormous reform that is at the horizon involving digitalisation. Question then becomes, what are those and importantly, how much ready are we, to embrace them?

Introduction

1. Sir Vos had provided various viewpoints over the years pushing for changing in the English civil litigation. However, the recent speeches in 2023, are perhaps, the most forceful regarding LawTech. On the 19^th April 2023 at “The future of London as a pre- eminent dispute resolution centre: opportunities and challenges” and on 14^th June 2023 at “Law and Technology Conference”, Sir Vos gave his speeches, which touched on a number of topics. However, I want to focus on those he particularly made regarding LawTech.

Sir Vos speeches

2. At the 19^th April 2023 speech, on digitisations and generative AI (artificial intelligence) section, references were made to ChatGPT. ChatGPT stands for Chat Generative Pre- Trained Transformer and is a “AI-powered language model developed by OpenAI, capable of generating human-like text based on context and past conversations”¹.

3. Sir Vos point was how this programme (if I may call that) evolved from its earlier version 3.5, where when it took Bar exam and scored at the bottom 10%, but its later version 4, at the same exam scored at top 10%. Essentially, Sir Vos was referring to the Machine Learning (ML). Sir Vos also touched up digital currency, smart contracts and distributed ledgers. Essentially, he was further referring to blockchain technology as well.

4. I intend to write further articles separately on those concepts from the civil litigation LawTech (CivilLawTech would potentially be a better way to reference to this) perspective because i) there are novel concepts which everyone is trying to catchup with; ii) there are quite a number of distinct concepts at play and as such, the cause & effect in terms of evolution, from CivilLawTech angle, would be differing as well.

5. I found the following parts of Sir Vos speech particularly very exhilarating:

“As I have been saying for some time now, digitisation, and now generative AI, is going to change both the kinds of disputes that need to be resolved and the way in which commercial parties will want and require them to be resolved. When everything is recorded on-chain, events and facts will be harder to dispute. It seems unlikely that 

parties transacting instantaneously on-chain are going to want to wait years to resolve their disputes in the traditional manner.”²

7. Now it is true that Sir Vos had been canvassing on digitisations previously as Take for instance his speech from the 17^th March 2022 at “The Future for Dispute Resolution: Horizon Scanning The Society of Computers and Law” and I really likened the strong start he made:

“…In this lecture, I want to take a step towards the horizon and consider what justice systems might look like in England and Wales and beyond in the next generation. I want to ask also what our most important objectives should be and how we should best prepare ourselves for that brave new world ahead…”³

8. This sounds, to me, nothing short of a colossal wave that is heading for the CivilLawTech at least. For analogy, when one is faced with a wave in the sea, one can either fight it or ride If they fight the wave, there is quite a risk that one might drown trying, but if they ride (or surf it, perhaps a better word), they could use the wave in his/her advantage and use the wave’s energy to one’s favour instead.

9. In that 2022 speech as well, Sir Vos talked about blockchain, CBDCs (an interesting concept which I intend to write separately, esp. considering China has recently started paying their civil servants in Changshu in such manner)⁴, smart contracts, IoT, DAO, metaverse (another bunch of interesting concepts which I intend to write separately as well since outside the scope of this paper) and quantum computing. He set his vision for the English civil legal system as in 2040 and he hammered on the simple point of CivilLawTech would be governing civil litigation, which in turn would eliminate, a lot of background noise of somewhat unhelpful yet substantial amount of factual row, that the court face regularly.

10. At this juncture, I invite the readers to visualise a English civil litigation system, where the relevant events are all documented and that is being analysed by an AI, whose coding allows it to determine the outcome with Would that result in achieving a Utopian society since disputes no longer takes years and years to conclude and better, the result achieved is acceptable without any further reservations by both parties, winner or loser, as it can be rationalised, perhaps, from 0 and 1 perception i.e., yes or no. There are no shades of grey on a specific issue, only black or white. A world, perhaps, like the popular 60s and 80s cartoon The Jetsons.⁵

11. Or, would that result in creating a dystopian society instead since blockchain recording eliminates scope for the need for any further disclosures because such records are all within the paradigm of Judicial notice. Further, there is no room for emotions to play any role at all in the decision making process since AI would not have or, at least as of present, not possible even to code such emotional aspects into ML. A world of AI uprising which goes berserk, perhaps, like the popular movie series of The Terminator.⁶

12. I would very much like to believe it would be the former, rather than the latter. This is because, anyone involved with civil litigation would know, that the wheels of English justice, unfortunately, takes a long time to It is not anyone’s fault specifically, but that the whole the system is structured, at present. A ecosystem, where such could be expedited, I can only imagine, would be much welcomed by everyone.

13. Moreover, Sir Vos did highlight in the April 2023 speech, about AI making decisions as follows:

“The question that will have come into all your minds in connection with AI is, of course, when, if ever, judicial decisions are likely to be taken by machines rather than judges. I think that AI will be used within digital justice systems and may, at some stage, be used to take some (at first, very minor) decisions. The controls that will be required are (a) for the parties to know what decisions are taken by judges and what by machines, and (b) for there always to be the option of an appeal to a human judge. The limiting feature is likely to be the requirement that the citizens and businesses that any justice system serves have confidence in that system. There are some decisions – like for example intensely personal decisions relating to the welfare of children, that humans are unlikely ever to accept being decided by machines. But in the commercial field, the controls that will be necessary on automated decision-making will rapidly become very complex indeed, because of the debates I mentioned earlier arising from the speed with which AI is being developed.”⁷

14. Sir Vos actually made a similar reference to 2022 speech:

“A key question for the next 20 years is, therefore, likely to be the extent to which artificial intelligence can or should be used in the digital dispute resolution process…But many lawyers and others are asking whether such public confidence would survive judicial decisions made by AI”⁸

“My answer to this important question is that it will, provided the public understand what is being decided by a machine and what is not, and provided that ultimately there is the ability to question an AI driven decision before a human judge. In the first instance, there is no reason why very minor decisions should not be made by the system – time limits can be extended by days in this way. I have already 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. This kind of intervention is likely to increase quickly”⁹

15. Further, what I found quite fascinating as well is Sir Vos’s speech, and what gives me more confidence, why a Vos reform is almost certainly on the cards, is the following paragraph:

“The prizes will, once again, go to the jurisdictions that adapt quickly enough (a) to meet the needs of those trading digitally, and (b) to make maximum, but of course constructive, use of the developments in AI.”¹⁰

16. As already mentioned above, technology already plays a significant role is daily life and it is also, well accepted fact that, English legal system is one of the distinguished, if not the most eminent, justice system in the whole Its roots go back to historic times and highly unlikely to loss its status in the near future. Of course, it comes with the caveat of, unless it is reaches such a point that it is no longer fit for purpose because it was not updated for the modern world.

17. Thereafter, Sir Vos did another speech in June 2023 and he focus again was on using generative AI for English civil legal system and considered the, rather fateful (and I should say, frightful) example of the US Attorney whose use of ChatGPT for a litigation matter, only ended in However, Sir Vos seemed to emphasise that better regulation as the way forward for such CivilLawTech advancement.

18. To me, that makes a lot of sense because AI is still developing, albeit developing in a very fast pace and what really happens, as I understand, when asked a question to which AI does not know the answer, is to “hallucinate”. That is, attempt to fill the gaps in that answer with fake On one hand, that does come to better coding, I suppose but, on the other hand, from the lawyer perspective, it would be inaccurate just to follow blindly. Envisage a situation, if I am before a Judge and arguing a simple point as, contract analysis is objective, not subjective, generally. I cannot just say that there is a case of Rainy Sky and stop there. It would only make sense, if I give the full citation Rainy Sky SA v Kookmin Bank [2011] UKSC 50 and most likely provide a copy of the judgment, summary, if not full. It may sound lawyer basics 101 but the message is loud and clear, one cannot have a relaxed approach simply because AI tool exists to do search of an element with ease, I guess. It comes to how generative AI should be used.

19. Sir Vos recognised that, what I believe to be in the near future, emergence of robo- judges and robo-lawyers and visioned a future where costs would be significantly controlled (if not eliminated on various parts) with AI assistance. Although, he recognised that there would be limitations on AI involvement in the justice system but remained steadfast that there is no escaping the fact that CivilLawTech is here to stay and dig its heels deeper.

Conclusion

20. Sir Vos recognised that, what I believe to be in the near future, emergence of robo- judges and robo-lawyers and visioned a future where costs would be significantly controlled (if not eliminated on various parts) with AI assistance. Although, he recognised that there would be limitations on AI involvement in the justice system but remained steadfast that there is no escaping the fact that CivilLawTech is here to stay and dig its heels deeper.

“A really careful look at the types of dispute that a justice system of 2040 will need to resolve is a vital starting point. If one is looking for universals, the evidential landscape is likely to look very different in 2040 when most of what individuals and corporations do will be indelibly recorded and payment systems will be using cryptoassets on-chain. Factual disputes as we know them will become almost entirely a thing of the past certainly in most civil claims…”¹¹

21. So, is that good or bad news for those involved in this field? I would be cautiously sanguine. This is because it comes to the point that I mentioned above, technology is interweaved into our lives at present and this would only increase over time. The English civil litigation system is about resolution of civil disputes between parties. If those parties are keeping up with technological advancements, it would hardly be effective civil legal system at all, if it is not updated but still not evolved from archaic times.

22. Sir Vos, is no stranger, to his strong views on advancement of English civil legal system. One simply has to look at his few recent judgments in Costs law disputes to see that. Hence, it would be no surprise to see, in the very near future reforms have occurred which changed the whole landscape in terms of CivilLawTech.

^{1 https://chat.openai.com}

^{2 19th April 2023 at “The future of London as a pre-eminent dispute resolution centre: opportunities and challenges”; Para 27}

^{3 17th March 2022 at “The Future for Dispute Resolution: Horizon Scanning The Society of Computers and Law.”; Para 1
4 https://www.scmp.com/news/china/politics/article/3217996/chinese-city-changshu-plans-pay-employees- using-digital-yuan
5 https://www.imdb.com/title/tt0055683/; Visited on 22.7.23 at 16:40
6  https://www.imdb.com/title/tt0088247/; Visited on 22.7.23 at 16:40
7 19th April 2023 at “The future of London as a pre-eminent dispute resolution centre: opportunities and challenges”; Para 34
8  Ibid; para 41
9 Ibid; para 42
10 17th March 2022 at “The Future for Dispute Resolution: Horizon Scanning The Society of Computers and Law.”; Para 28
11 Ibid; Para 24}