With national lockdown 2.0 now in full swing, those who wish to use Scotland’s civil court system may be wondering what impact the restrictions will have on their new and existing claims.
Indeed, when the country was first plunged into a nationwide lockdown in March 2020, many civil practitioners found that a great deal of their existing litigation cases ground to a halt. So this begs the question, has the system now changed to allow for remote operation in order that civil justice can continue to operate?
As at March 2020, the civil court system was on a slow route to some modernisation. Most hearings required to take place in person, documents were rarely allowed to be lodged electronically and practitioners would often be required to spend hours waiting at court for the purpose of a 5-minute hearing. Once the first lockdown was implemented, the courts reduced to urgent business only. Whilst the urgent nature of an action was open to be argued, in practical terms, only a very limited number of matters were allowed to proceed.
As restrictions lifted in stages, the Scottish Courts and Tribunals Service issued regular guidance on the practice of court business. For the purposes of their administration and safety of their staff, electronic lodging of documents was required and in turn, court documents were returned electronically. Where there was previously a requirement to intimate documents by either fax, recorded mail delivery or sheriff officer service, the courts now allowed intimation by email where the parties agreed to do so. Of course, this is generally much more efficient and also conducive to a reduction in papers printed and used – an environmental bonus.
Additionally, hearings which had previously required personal attendance by 2 or more parties began to be conducted by telephone or video conference. Of course, remote hearings do not allow for all the facilities that can be provided during an in-person hearing. There are practical issues when it comes to evidential hearings or hearings with a large number of participants. Not to mention the commonly-cited (perhaps sometimes unfairly) ‘IT issues’. However, for the large part, this allows parties to schedule their days appropriately meaning less waiting around and less need for solicitors to block out a whole day – just in case, for a short court appearance. Additionally, less travel is required as often solicitors’ firms will cover hearings all over Scotland. Not only does less travel mean optimisation of work time for a solicitor, it can result in a reduction in fees charged to clients.
Despite the mixed reception that the new way of litigating has received, it is this structure which is allowing all court business to continue during this new lockdown. The Law Society of Scotland and the Scottish Courts and Tribunals Service have made it clear that civil business will continue to be processed. Already, from a few months of delay, there is a backlog of cases waiting to be heard. This can be frustrating for people who want to utilise the court system, as it is impossible for their solicitor to give any firm assurances on when things can be expected to progress. However, this does invite parties to consider the appropriateness of litigating and encourage extra-judicial negotiation or exploration of one of the alternate methods of dispute resolution: arbitrations and mediation. Both arbitration and mediation can be advantageous, depending on the circumstances of the matter.
It seems, for now, that the changes, although borne out of necessity rather than a long-standing plan, procure a favourable outcome for both clients and solicitors. Most civil court actions are continuing to progress, albeit many timetables for full hearings are somewhat delayed.
If you do have a matter that you wish to discuss, please get in touch with Blackadders’ Dispute Resolution Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.
Rebecca Thompson, Solicitor
Blackadders is one of the leading law firms in the East of Scotland. Legal expertise, professional support staff and technical resources help to create a first class legal service for both business and individual clients.