Digital litigation is the future. It has been clear for a while now that, as a result of the “Quality and Innovation” (KEI) process, the only way to conduct legal proceedings in the future will be online.
Administrative and civil cases are already being conducted electronically, but on a voluntary basis only. It may take a while, though, before this is turned into an obligation, KEI Director Monique Commelin recently commented during an interview. But this delay does not mean that steps are not being undertaken in other areas. For example, on 1 March, the Dutch Council for the Judiciary announced that the Dutch Supreme Court (which, like the Council of State, is not taking part in KEI) will be the first to introduce mandatory digital litigation in civil claims for damages, starting this month.
This being 2017, bringing up this subject often leaves the person you are having a conversation with surprised to hear that judges and lawyers are up in arms about the move to online litigation. Surely, this has been possible for years? Nothing could be further from the truth: printing out case papers and electronic exhibits and then sending them off by post, courier or fax is still the order of the day.
But come the future, the entire process will run through an online portal called 'My Litigation'. That is a secure portal to be used for a variety of litigation steps. You can lodge an appeal via the portal and upload the notice of appeal. The portal has an informative function as well. You will no longer depend on the public servant handling your case to provide information on the case. Instead, you can log onto My Litigation to view the exact date of the hearing and will receive an alert via the portal when the other party has uploaded a case document.
In practice, this will require a watertight IT system. In the Netherlands, a fast and stable Internet connection is almost as reliable as running water, but do not forget that you will also need a suitable scanner, for example. The technical rules to be drawn up will set out the precise requirements in terms of the prescribed format and maximum size of your documents. Other points requiring attention are authentication tools (e-Recognition), electronic signatures, and having a fall-back plan in place in the case of a malfunction or outage.
But it is early days yet. KEI Director Commelin also pointed out that it was a deliberate choice not to make digital litigation mandatory for all courts and areas of the law until the technology had proven itself. This means that digital litigation will not become mandatory until the systems are ready for it. That will be the case in the course of this year, or so the Council for the Judiciary expects. Come the winter of 2017, there is no escaping mandatory digital litigation. Because this point is approaching rapidly, now is the time to get your internal procedures sorted and to ask yourself the question: "Is my organisation ready for digitisation?"
If you have any doubts or questions in this field, please contact our Public Law practice group, which has provided input for and is taking part in KEI’s "Voluntary Digital Litigation" pilot. We are also the initiator of Silex, a group of law firms teaming up to respond to new trends and developments in the law as effectively as possible. We would be happy to make our expertise available to you and help you in any way.