With pretty much life as we knew it coming to an abrupt standstill following the first lockdown in 2020, it’s fair to say that a fairly frantic period ensued in the legal world to ensure that business could go on as far as was possible.
A key innovation in Scotland was the passing of legislation in 2020 by the Scottish Parliament making changes to the law for conducting civil business in Scotland’s courts and tribunals. This meant that any participant in civil proceedings can take part in hearings by way of live video or telephone links from any location.
The changes effectively suspended the requirements for physical attendance at hearings, making it possible to conduct hearings where no one is physically in the same place, or in a court or tribunal building. Whilst the changes can be over-ridden by the court or tribunal where appropriate, this was arguably one of the most significant modifications to the court system we have seen for many a year.
But of course, as we begin to return to some kind of normality, all types of Covid-related temporary measures need to be reviewed.
Whilst the new civil hearing procedures have been extended to March 2022 (having initially ended in September 2021), in May the Judicial Institute for Scotland held a Civil Law Conference to consider and reflect upon the changes to the civil justice system which had been introduced – this provided an opportunity to focus on the post-Covid environment for civil justice.
The council discussed and debated a range of areas and, importantly, considered how to incorporate the beneficial elements of the remote system of hearings within the court rules. Draft rules on the mode of attendance at court hearings in the Court of Session and in ordinary cause actions in the sheriff court have been developed for the purposes of a public consultation.
Among the key subjects under discussion were which mode would be most suitable within categories of civil proceedings – electronic means (video or telephone), attendance in person or a hybrid.
There was also consideration of the creation of a default position for certain categories of civil hearings as well as any exception to a default position for certain types of hearings. Furthermore there was deliberation around the circumstances in which a default position can be over-ridden by the court (either on application of parties or of the courts’ own accord).
The process for making an application for attendance at a hearing in a manner other than the default position was also examined.
The responses to the consultation will inform the Council on how best it can provide rules and frameworks which facilitate and support new ways of working in the courts post Covid and how long term benefits can be realised.
There have been wide ranging debates on the merits of conducting hearings by electronic means as opposed to in-person hearings both within Scotland and indeed internationally and of course there are strong views on both sides of the argument.
The draft rules attempt to strike a balance and cover what types of business should be under consideration when deciding which option might be the most appropriate in terms of mode of attendance for any given hearing type.
It should also be noted that there are safeguards to allow for a non-default option to be taken, and when mode of appearance is to differ from the default position, there is a “reasonableness test” whereby the court must be of the opinion that the mode of appearance would not prejudice the fairness of proceedings.
What is clear from the consultation is that the direction the Scottish courts are heading in is consistent with society as a whole as it moves further online, and the draft rules are meeting the need for modernisation, and in particular meeting user expectations.
Ultimately, there seems little prospect of or desire for the landscape of civil proceedings to return to a pre-Covid state and an element of remote hearings is likely to remain a permanent fixture.
Myra Scott is partner and head of lender services practice group, Aberdein Considine
