As society adapts to a new normal in the wake of COVID-19, the Scottish Courts represent a key example of potential change for the better as a by-product.
Following the UK Government lockdown announcement on 23 March 2020, the courts essentially shut down: physical appearances were restricted to essential criminal matters; and electronically, the courts would only deal with ‘urgent’ civil business. ‘Urgent’ – in the Scottish Courts and Tribunals Service (‘SCTS’) sense – has a somewhat nebulous meaning, but in strict terms meant that the court – in terms of civil business – was only dealing with Caveats, interim interdicts/orders, time-bar actions and urgent corporate insolvency or sequestration applications.
As a result, a huge backlog has built up in the court system, and it has been suggested that courts– particularly criminal courts in Scotland – could take up to 10 years to deal with that backlog. Part of that uphill struggle out of lockdown for the courts arises because many of the practical and operational elements of court procedure are outdated, technology falling short of what is available in nearby jurisdictions. However, we have seen markedly positive progress in terms of the SCTS ability and willingness, to be flexible, and to evolve to fit our socially distanced, and largely now virtual, reality.
Both the Sheriff Courts and the Court of Session have welcomed the intimating, lodging and circulating of electronic documents, and it is becoming the norm to communicate with parties to an action, and the court, via electronic means, rather than traditional forms of communication (postal letter, fax or in person, all of which were commonplace prior to March 2020). It is worth mentioning that SCTS does provide a fully digital service – Civil Online – for Simple Procedure (i.e. small claims with a value below £5,000) cases.
In terms of business beyond the administrative, from Options Hearings to Proofs, the courts, and of course practitioners, have taken the range of possible virtual and technological arrangements in their stride. It is now commonplace that hearings will take place via telephone conference call or Webex, allowing for video streaming, and replication of a traditional courtroom. Such technology has not been without its challenges and hiccups, but it is encouraging to see that the courts and practitioners are making headway with what technology has to offer.
The main challenge to the justice system – across both criminal and civil procedure – has been the question of how to take witness evidence and accommodate juries in a socially distanced world. The jury question has been answered by the sitting of juries in cinemas, and streaming evidence via video-link. The evidence question is less straightforward and has required a nuanced approach; whilst it is perfectly possible to take evidence over Webex (and it has been done), it is not always practical or sensible, particularly where reliability and credibility of the witness is at issue. The solution has been the introduction of a ‘blended proof’, whereby evidence is heard by a judge sitting in a physical courtroom, accompanied by Counsel and their instructing solicitors and clients, and evidence can be given either in person, or remotely via WebEx. The first proof of this format took place in September 2020, and was a great success.
The Dispute Resolution team at MBM are welcoming, and alive to, the advances in technology, and constantly changing circumstances, and are here to assist clients navigate the new normal in commercial litigation.