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Scottish Courts: Simple resumption or rejuvenation post-lockdown?

Since the United Kingdom went into lockdown on 23 March 2020, the majority of physical court appearances became unworkable.

In large part, the courts essentially shut down; physical appearances were restricted broadly 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, and urgent corporate insolvency or sequestration applications.

Practically, this means that the court is going to have quite a lot of backlog on its hands, and as Scotland make its phased way out of lockdown, it seems that the court is focusing its efforts on this, and – needless to say – urgent business. The Court of Session approach is – of course – centralised as it exercises its jurisdiction across the country. However, as has been the case since 23 March, the Sheriff courts individually publish Practice Notes with their own specific measures. Therefore, the particular rules and guidance applicable to each case will depend upon which court your action is raised.

Thinking ahead, it seems that SCTS is keen to acknowledge calls for more sophisticated technology stating in relation to the Sheriff courts “The last few months have shown our capacity and appetite for change. The next will require that same commitment from everyone involved as we test and progress our recovery arrangements”.

Sheriff Court

The 49 Sheriff courts in Scotland were reduced into 10 ‘hub’ courts as of 23 March 2020. As of Wednesday 3 June, the SCTS has introduced a further five hub courts at Livingston, Kirkcaldy, Greenock, Dumbarton and Airdrie “to deal with custodies, and help reduce court sitting times. The remainder of the sheriff courts, on opening, will initially focus on the backlog of work that has accrued due to the coronavirus lockdown”.

Moreover, SCTS has indicated that it intends to move to conducting more business online where it is appropriate to do so. This is a welcome initiative, where, in recent months, all but the most niche urgent business has been given the attention of the courts, but also for the future sustainability of the Scottish courts system as an attractive jurisdiction in which to litigate.

SCTS have updated their priorities and have published further guidance on what they will be dealing with as we move through Phase 1 of the Scottish Governments’ route map out of lockdown. More particularly, caveats, interim interdicts, urgent corporate insolvency and sequestration applications and any other applications determined by the court to be urgent (i.e. imminent time bar cases) are being considered by the Sheriff Court as urgent or necessary. Additionally, actions can be restarted where: (i) there is a good reason for doing so; (ii) it can be progressed remotely; and (ii) a hearing requiring the leading of evidence is not required.

It is not clear when the courts will physically re-open to the public, and when normal business will resume, but the SCTS has indicated in a news update published 1 June, that “This week we are introducing staff and sheriffs to closed courts to bring as much business up to date as possible, and to prepare courts for the re-introduction of business from week commencing 15 June”. In brief, during Phase 1 (commenced 1 June), the courts plan to continue with civil business already restarted; focus on the backlog; and continue to deal with urgent business.

Looking forward into Phase 2 (no earlier than 15 June 2020), the courts will begin to deal with non-urgent new civil business lodged after Phase 1 (with exception of new simple procedure claims and summary cause actions for the repossession of heritable property); continue to accept documents submitted electronically; deal with actions administratively discharged, adjourned, continued, sisted or paused during the lockdown; proceed with procedural and substantive hearings not requiring evidence remotely; and Urgent applications and restart applications will cease.

Finally, in Phase 3 (no earlier than 30 July 2020) the sheriff courts will accept new Simple Procedure Applications lodged via Civil Online and start to progress procedure in actions for the recovery of heritable property.

Insofar as hearings requiring evidence (i.e. Proofs and PBAs) are concerned, these are likely to only begin taking place late during 2020, or indeed 2021.

Court of Session

The Court of Session – exercising its jurisdiction over the whole of Scotland – is in a slightly different situation to that of the sheriff courts, given its lessor and more centralised case load.

In terms of the backlog, the Inner House began sitting as an online court for appeal hearings early into lockdown, and so we expect that the backlog is minimal in this regard. Hearings are proceeding by way of video conference or written submissions.

The Outer House, however, have not been previously conducting hearings – except for the most urgent business – and so a considerable backlog is expected. The Outer House is now, however, conducting procedural hearings by way of – ideally – telephone conference call, and all substantive hearings will be assessed on a case-by-case basis to assess the appropriateness of proceed by way of video conferencing. The court does admit, however, that the use of video conferencing for substantive hearings ‘is in its infancy’, and as such the appropriateness of the software for hearings requiring presentation of evidence by way of productions or witnesses are to be determined on a case-by-case basis.

Both the Sheriff Court and Court of Session is accepting all documents, and electronic signatures, under and in terms of the Coronavirus (Scotland) Act 2020.

For now, it is somewhat of a waiting game to understand the true impact of COVID-19 on the Scottish legal system, and it will begin to become clear once hearings that have been previously adjourned or discharged are rescheduled, the practical effect on the timeline of individual actions. A modernisation of the Scottish courts system has been overdue for some time now, it is therefore promising to see that the SCTS has committed to making sustainable changes which will continue to make Scotland an attractive jurisdiction in which to litigate, and make the system generally slicker.

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