The picture has been less bleak for the civil justice system. While there have been major challenges, the nature of civil business is such that the courts have been able to adapt procedures more easily to achieve a greater degree of continuity. The measures taken include some changes that commercial disputes lawyers like myself will wish to see retained as permanent features of the system.
A key and early measure that was taken was the introduction of new legislation, the Coronavirus (Scotland) Act 2020, which enabled online signature and service of documents and made provision for remote hearings. In parallel with this, the courts began quickly building their capacity to hold remote hearings. Within a relatively short period of time, commercial disputes were progressing again, albeit in an online environment.
Change brings challenges, and questions have been raised over remote hearings. For example, can a judge properly evaluate the credibility of a witness who is not in the same room? Although the jury may still be out on this question, in reality many commercial cases will not involve major questions of witness credibility. In such cases, remote hearings should be as effective a means of dispensing justice as an in-person hearing.
Certainly, the remote hearings I’ve attended have worked well. I’ve been impressed by how the judges, lawyers and clients I’ve deal with over the last ten months have adjusted to remote hearings. They’ve demonstrated a shared determination to make things work which has proved that necessity really is the mother of invention.
The increased use of technology in courts has been on the agenda for years, with widespread recognition that improvements could deliver a range of efficiencies to the conduct of disputes. It may have taken a pandemic to move this up the priority list but, now that we’re there, these changes can be built on.
We are already seeing the longer-term benefits. The initial legal, technological and procedural steps taken in the early part of the crisis to manage civil cases meant that, when the most recent lockdown was announced at the beginning of the New Year, the commercial courts were in a position to continue reasonably normal operations.
We have also seen benefits for our clients. The proliferation of remote hearings in particular has had a number of positive effects: they are easier for clients to attend, they provide a platform for greater transparency, and reduce costs while delivering environmental benefits by eliminating travel and waiting time.
It was not surprising to see the Lord President endorsing the benefits of the new model last summer when he said: “Virtual courts and online services should, and now will, be viewed as core components of the justice system, rather than short-term, stopgap alternatives to appearances in the courtroom."
The step change necessary to galvanise the courts and the profession into action on improving technology has now occurred and there is no turning back from that. There are, however, further challenges ahead. The technology that’s currently available needs to be improved and access to it must be widened. Careful consideration must also be given by the courts as to how they will deliver open justice in an online environment so that justice is not only done but is also seen to be done. In addition, there are significant questions remaining over how witness testimony and credibility should be dealt with in remote hearings.
Continued progress in how we manage these issues and deliver an efficient and effective civil justice system across Scotland’s courts will benefit all litigants. This is especially applicable to those involved in business litigation where the necessity of having to adapt to new ways of working has already brought welcome costs savings, time efficiencies and transparency to the conduct of their disputes.
Colin Hutton is a Disputes Partner at CMS