25 June 2020

The Covid-19 outbreak has changed the way in which most of us live and work. An obvious statement, but undoubtedly true.

For litigators, the greatest change has been in conducting court proceedings without the use of a courtroom and from the “comfort” of our respective homes. 

As the outbreak did not bring with it the end of all legal disputes, necessity has indeed required to be the mother of invention. As a result, the court services in Scotland have taken significant, previously unthinkable, steps towards establishing technology as the default means of progressing court proceedings.

Lockdown has provided opportunities for taking a fresh look at many things. I have, for example, spent more time than I probably should have in considering (a) the impact on the law of negligence had lockdown rules been in place on 26th August 1928, and (b) how many of those rules Mrs Donoghue would have been breaking if she had nonetheless decided to meet that friend in the Wellmeadow Café in Paisley all those years ago.

From a more practical perspective, I have also had time to reflect on my recent experiences in litigating from home, and to make the following observations:

• Many civil legal disputes are just that – legal. They involve a decision, by a sheriff/judge, as to which lawyer has correctly interpreted the law. The default position has previously been to conduct such hearings in person, within a court room. The recent move towards dealing with such hearings via telephone/video conferencing and written legal submissions, as a default position, is a welcome and potentially game-changing development.
• Other forms of dispute involve a decision, by a sheriff/judge, requiring analysis of facts, with witness credibility and reliability as key areas of battleground. In such disputes, a good deal may turn on very little – by which I mean assessment of a witness’s demeanour and behaviour. Gestures and non-verbal communication can be much harder, potentially impossible, to pick up on remotely. Whilst making progress is clearly important to all concerned in legal disputes, parties will wish to think carefully before agreeing that final resolution of cases involving significant factual disputes, via remote means, is appropriate.
• A further note of caution on the use of remote hearings relates to the question of achieving a level playing field. Stepping into a court room provides all participating parties with something as close as possible to such a level field. Everyone is present within the same atmosphere/environment and is subject to the conditions imposed by the presiding decision-maker. Giving evidence is rarely a natural experience but attempting to do so via video link carries a real risk that a witness’s evidence may be affected by technical difficulties (poor internet connection anyone?), and/or unavoidable distractions.
• Civil litigation is rarely conducted in a vacuum and the presentation of many cases is a real team effort, requiring communication and organisation between opposing parties and between different members of the same team. The recent investment and promotion of technology to speed up and manage the court process is a most welcome development, and can hopefully lead to the conclusion that a good deal of litigation can be accomplished remotely. Since lockdown began, we at BTO have had various motions/applications dealt with remotely and have participated in numerous court hearings from our own homes, succeeding in advancing our clients’ positions in so doing.

There are many ways in which the recent requirement for litigating from home gives reason for hope. Use of technology to advance civil claims is not new – the most efficient mediation I have ever participated in was conducted by multiple parties over a telephone line.

Whilst there were initial concerns as to a perceived “slow down” in civil litigation, our experience has been that the court service is very much up and running, and is willing to engage in a new and flexible manner.

Our clients still have legal disputes which need to be resolved, and whilst certain processes will, inevitably, take longer due to current movement restrictions, we are living through history, and with resilience and a positive, though always pragmatic, mindset, this writer believes we now have a greater opportunity than ever before to adapt and modernise our court processes to enable litigating from home and beyond.

Now back to that Donoghue v Stevenson lockdown-breach analysis…

Contact

Eileen Sherry, Senior Associate E:  esh@bto.co.uk T: 0141 225 5256