Brenda Mitchell and Jodi Gordon: Scottish Courts and Tribunal Service must come out of mothballs and into the modern world

When the Prime Minister made his anticipated announcement on lockdown, many industries were hit hard and fast.

Jodi Gordon, Partner, Road Traffic Accident Law (Scotland) LLP

Within the legal sector, there was a flood of emails from firms advising all staff were working from home but would still provide a full service. At Road Traffic Accident Law Scotland LLP, we acted quickly to make sure all staff had a laptop and secure access to our case management systems.

Within days, the insurance industry did likewise. By the end of the first week of lockdown, lawyers and insurers continued to progress cases with a little ingenuity and a great deal of mutual respect. Cases not subject to litigation were negotiated by email and phone. Most insurers swiftly moved to electronic bank transfers to process client damages awards. Cheques became a thing of the past.

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Our aim is to continue providing a service to our clients whilst protecting our staff. It’s not been easy and has taken a great deal of investment, but the use of cloud-based systems, phones and video conferencing has made this transition relatively seamless.

Brenda Mitchell, Partner, Road Traffic Accident Law (Scotland) LLP

Video conferencing is an everyday occurrence. We consult with clients and advocates from home. As many clients have suffered life-altering injuries following road traffic incidents, we have a responsibility to ensure treatment, medical examinations and the litigation process continue as smoothly as possible.

Many treatment providers, including physiotherapists and psychologists, are providing sessions via video conferencing. Medical experts have also been proactive in setting up virtual consultations so cases do not simply have to be put on hold until the uncertainty of COVID-19 and lockdown ends.

Initially, the courts notified practitioners that procedural matters could be conducted by written submissions or telephone conferencing. The courts issued guidance almost daily from 17 March, starting positively but ending on 25 March by stating only essential court business would be dealt with. The litigation process quite simply ground to a halt. Civil court hearings for personal injury (PI) actions scheduled for proof between March and June were discharged across the board despite 98 percent of PI actions raised in court settling without going to proof.

If the legal profession and insurance industry could adapt so quickly to remote working, what prevents the Scottish Courts and Tribunal Service (SCTS) from doing likewise? We can conduct procedural hearings by telephone conference. We can submit written submissions as an alternative. Judges and sheriffs can still request reports from pursuers and defenders’ agents via email regarding progress towards settlement in cases set down for proof.

Concerns regarding SCTS “mothballing” have been raised by the Faculty of Advocates. Vice Dean Roddy Dunlop QC wrote to the SCTS highlighting that while no-one underestimates the challenges in this current climate, we are completely out of step with south the Border. In England and Wales, arrangements are being made for telephone, video conferencing and other technology to be used so hearings can continue where possible.

Access to justice should not be denied. We urge the SCTS to listen to the profession and help us. Please re-open for business and ensure cases are progressed by alternative means. It’s time to restart our beating heart. It takes innovation, hard work and ingenuity but if matters continue to be stalled, the most vulnerable in our society will be hit hardest and the damage to the Scottish judicial system will be irreparable.

Brenda Mitchell and Jodi Gordon are Partners, Road Traffic Accident Law (Scotland) LLP