25 February 2022

As was the case for many of us, the pandemic forced the civil courts in Scotland to operate business through an online platform. Instead of requiring in-person attendance in court, the implementation of the Coronavirus (Scotland) Act 2020 and the Coronavirus (No.2) (Scotland) Act 2020 has permitted civil hearings to take place remotely through a WebEx video or an audio link.

Permission to conduct civil business remotely was due to expire on 30 September 2021, but given the ongoing COVID-19 restrictions, the Scottish Government extended this until 31 March 2022. The Scottish Civil Justice Council (SCJC) reflected upon the transition to conducting business online and held a consultation to consider the preferred mode of attendance at civil proceedings going forward. The consultation paper was published in September 2021 and considered whether the beneficial elements of remote hearings could be incorporated into the existing civil practice rules.

Draft Rules for Mode of Attendance at Hearings

The consultation considered draft rules relating to the mode of attendance at civil hearings in the Court of Session and Sheriff Courts. These would operate on a presumption that some hearings would be suitable for in-person attendance and other categories would assume electronic attendance. However, there would be discretion to allow an individual to apply to depart from the general presumption. The draft rules would amend the Rules of the Court of Session 1994 and Ordinary Cause Rules 1993. Of particular note, the rules would impose a general presumption on substantive hearings, that attendance in-person in legal debates and reclaiming motions would only be required where there is a point of law of general public importance/particular difficulty or importance. They would also only require a Proof to proceed in-person where there is a significant issue of credibility of the party or witness which is dependent upon the party’s or witness’s demeanour or character.

Responses to Draft Rules

On 15 February 2022, the SCJC published their analysis of the responses to the consultation, as well as a corresponding Business and Regulatory Impact Assessment report and an Equalities Impact Assessment report. 82 responses were received from solicitors, advocates, the judiciary, organisations, public bodies, and businesses. Amongst other points, the responses prompted opinion on the imposition of the presumptions for in-person and electronic attendance. They also considered whether a motion would be an appropriate recourse to depart from the general presumption. Responses raised concerns with the proposed rules, primarily in relation to:

• Access to open justice and quality of justice
• Training of young solicitors/advocates
• Difficulties examining the credibility of witnesses
• Issues of privacy
• A limited scope of communication between client/solicitor
• Mental health and physical health of participants 
• IT difficulties impeding upon access to justice 

In summary, less than 1 in 5 of the respondents supported the use of a general presumption in both Court of Session and Ordinary Sheriff Court procedure. It suggests a preference for a more flexible system which would establish the necessity of an in-person hearing on a case-by-case basis. Several respondents suggested preference for a presumption of electronic hearings that were of procedural nature rather than substantive.

The responses clearly show that the majority have rejected the SCJC suggestions to continue with electronic attendance for substantive hearings. However, that does not mean that electronic hearings will be abandoned in the post-pandemic landscape; the majority of respondents recognised that short procedural business is more efficiently conducted electronically and is suitable to use in cases of emergencies.

BTO’s Clinical Negligence team is experienced in dealing with a number of claims in the Sheriff Courts and Court of Session. Please get in touch with BTO’s Clinical Negligence team if you would like to discuss this topic or any other aspect of the litigation process.

Laura Donald, Partner: ljd@bto.co.uk / 0131 222 2939

Phoebe Crane, Trainee Solicitor (Author): pcr@bto.co.uk / 0131 222 2939