A consultation has been launched by the Scottish Civil Justice Council (SCJC) on proposed new rules which would result in virtual hearings becoming the default approach of the Scottish courts for the majority of civil litigation.
We expect a high degree of interest in this Consultation, both from the legal profession and from regular users of the Scottish courts.
The Consultation is open for comment until 18 October 2021 and we give a rundown of the key proposals and issues below.
Background to the Consultation
In 2020, the civil courts in Scotland shifted to an online hearing model in response to the COVID-19 lockdown. This approach has continued for almost all civil business since then. In May 2021, the Judicial Institute organised an online conference to discuss how business might be conducted post-lockdown (the conference report and papers can be viewed here). The conference report was recently discussed by the SCJC and a decision was taken to develop draft rules on the use of virtual hearings for consultation, in particular to take account of “the need for procedural consistency and predictability for court users”.
The Consultation paper sets out some general background comments to the proposals, including:
- That “there is a need for modernisation of the courts so that they can keep pace with user expectations and can take advantage of the potential benefits offered by digital technologies”;
- That the proposals are considered by the SCJC to be consistent with:
- Finally, that “The significant public debate on the merits of conducting hearings by electronic means as against in-person hearings is continuing both within Scotland and internationally.”
The proposed draft rules seek to:
- Establish a default hearing mode for different categories of civil hearing. While the Consultation recognises that there are three modes of hearing (in-person, virtual and hybrid) the draft rules only use two default modes: in-person and virtual; and
- Set up mechanisms to allow parties to apply, or the court to direct, that the default mode should be changed in certain cases where particular tests are met.
The rules identify the various categories of hearing in some detail, however, broadly speaking the types of hearings that have been identified as suitable for the ‘in-person default’ category include:
- most family law hearings;
- proofs (trials) in which there is a “significant issue of credibility of a party or witness which is dependent upon an analysis of the party’s or witness’s demeanour or character” (Credibility Exception); and
- debates (hearings on legal argument only) and appeals which raise “a point of law of general public importance/particular difficulty or importance” (Importance Exception).
The ‘virtual default’ category includes:
- all Commercial Court (Court of Session) hearings including all proofs (trials). Unlike the other civil courts, proofs in the Commercial Court will be default-virtual regardless of whether any issues of credibility arise;
- all other proofs (trials) which do not meet the criteria of the Credibility Exception; and
- all debates (hearings on legal argument only) and appeals which do not meet the criteria of the Importance Exception.
Provision is made for parties to make an application (or for the court to direct) that the mode for a particular hearing be changed if (a) the applicant can show (or the court considers there is) cause for such a change and (b) the change will neither:
- prejudice the fairness of the proceedings; or
- be contrary to the interests of justice.
There is no doubt that virtual hearings have enabled civil justice to continue to be delivered in Scotland during the pandemic. The willingness of the SCTS to embrace technology and innovation in the early stages of the crisis was a significant factor in that success and the desire and commitment of the SCTS and the SCJC to continue that journey is to be welcomed.
However, it must also be noted that some important reservations have been expressed by a variety of stakeholders regarding virtual hearings and how well these work in comparison to in-person hearings, with diverging views expressed by court users, members of the legal profession and the judiciary alike.
Notably, in May of this year, the four bars (the Faculty of Advocates, the Bar Council of England and Wales, the Bar of Ireland and the Bar Council of Northern Ireland) issued a joint statement urging caution with the widespread adoption of virtual hearings post-pandemic, citing a number of practical challenges that can disadvantage parties seeking to present their case in a virtual environment. While the four bars indicated support for the use of virtual hearings for certain matters, and where the parties and court all agree to such hearings, they were of the view that in-person hearings to deal with substantive matters should be available to parties as of right. The proposals in this Consultation, if implemented, would significantly restrict the scope for litigants to influence the mode of any hearings in their cases, imposing a broad virtual default that would be difficult to overturn in most cases.
As noted above, the Consultation acknowledges that the issues it raises are currently a matter of significant public debate. It should be noted that the Consultation explicitly states that “Striking the right balance between in-person hearings and electronic hearings will never be an exact science… the Council concluded that it could usefully support the ongoing public debate by setting out its own thinking in draft rules.”
It is to be hoped, therefore, that the Consultation will attract responses from as wide a range of stakeholders as possible to ensure that the vitally important issues it raises are fully explored and all views taken into account.
Looking ahead to the future
It would be helpful to see more concrete data on the respective advantages and disadvantages of virtual, hybrid and in-person hearings, ideally before permanent changes to how civil litigation is conducted are implemented. Such data would enable a more informed view to be taken of the cases in which in-person hearings should be maintained as well as facilitating a broader conversation as to how technology may best be used to present cases in virtual and hybrid environments as efficiently and cost-effectively as possible.
The traditional structure of court hearings, with long days, a fixed order of business etc. has largely been adopted wholesale for virtual hearings during the pandemic, albeit with minor tweaks. Given the circumstances, this is understandable, however, it may not be the optimal approach for such hearings. If virtual and hybrid hearings are to play a significant role in civil litigation going forward, it will be vital to fully interrogate the capabilities of the technology and consider how the traditional structure and conduct of hearings should be adapted to address the challenges of presenting cases in this way.
 Minutes of SCJC Council meeting, May 2021