16 April 2020

This note provides an update to the overview provided on 2 April 2020.

See here: The Scottish Courts and COVID-19

The lockdown of the civil judicial system has led to calls of concern from the Faculty of Advocates that the Scottish Courts and Tribunals Service (SCTS) was “mothballing” civil business. Strong words from Faculty. The Law Society of Scotland has also raised its concerns over the issue and encouraged the SCTS to address the sector’s concerns.

The SCTS has refuted that it is mothballing court business, highlighting that the measures it has taken are to protect its employees and public health. However, there is a fear that the Scottish judicial system may, in this respect, be falling behind its English & Welsh counterparts in its adaptation to and embracement of modern technology. The concern is that this may act as a deterrent to litigants in the future from choosing Scotland as their forum of choice, particularly for commercial disputes.

The issue was brought sharply in to focus by the Court of Appeal judgment in Teeside Gas Transportation Limited v Cats North Sea Limited & Ors, issued on 8 April 2020 in which Sir Geoffrey Vos explained the process by which the appeal was heard as follows:

“I want only to mention briefly the way in which the hearing of this appeal was conducted. Thanks to the hard work and cooperation of court staff, the parties and their lawyers, this appeal was conducted entirely remotely by the use of Skype for Business. It was completed comfortably within the 1.5-day estimate, and both leading counsel had a proper opportunity to make their submissions, to confer with their junior counsel, and to take proper instructions from their instructing solicitors and clients. ….Some 19 individuals, including the members of the court, were signed in to the Skype conferencing facility at any one time.”

The speed and adaptability demonstrated by the Courts and Tribunals Judiciary in making the necessary arrangements to ensure the appeal was heard is admirable. It is against this background that the recent announcement by the Scottish Courts Service, that Inner house (appeal) business in the Court of Session is to begin remotely from 21 April 2020, is a step in the right direction. The SCTS has said that it is listening and responding to the profession. It issued a statement commenting that:

“We are working to introduce remote digital hearings for Inner House Appeals and will be seeking to expand this into other areas of civil business. Further guidance will be available in the coming week, enabling suitable procedural business to be heard remotely.

Increasing digital hearings is not just about technology but includes people and processes. While digital hearings enable practitioners to remain at home conducting business online, the reality is that the majority of civil court processes are still heavily paper based, currently requiring more staff to travel to courts in order to create digital bundles to allow hearings to proceed.”

The SCTS’s statement provides a clear note of caution for those anticipating a swift and seamless move into digital remote hearings.

The fact is that court processes for individual cases are predominantly paper based. It is therefore no small task to convert existing court processes into a digital format, together with the IT involvement to put in place the necessary secure links for the judiciary to conduct the hearings remotely. Parties can undoubtedly assist the SCTS in pulling together electronic bundles of papers, but this will only go so far. The SCTS requires its own IT infrastructure to support a move to digital working and it is unclear if it is equipped with the necessary technology as it stands.

Nonetheless, the SCTS commitment to the use of technology to allow hearings to proceed remotely is, at least, a step forward. This is particularly so in the current climate and with an eye to the future and, perhaps, a re-think on whether physical ‘in court’ appearances are required. If hearings can be dealt with remotely, this could lead to savings on costs for parties if hearings took place at a scheduled time instead of the hours that can be lost at court in waiting on cases to call. There is also the added benefit that video hearings can be recorded and referred back to in subsequent procedure, if necessary. However, these are, perhaps, issues for another day.

The point for the day is that the courts in Scotland appear, albeit slowly, to be moving in the right direction. At BTO, we have raised with the Law Society the need to facilitate the resumption of civil business before the courts and the need for the profession to work collaboratively with the SCTS for the benefit of clients and in order to maintain the image of Scotland as a jurisdiction of choice.

Contact

Mark Hastings, Senior Associate and Solicitor Advocate E: mfh@bto.co.uk T: 0141 225 5293