The issues presented by Covid required the Scottish Courts and Tribunal Service and legal profession to embrace innovation and adapt swiftly to prevent justice from grinding to a halt. Some of the measures introduced have been universally welcomed and have been adopted as part of ongoing daily practice, for example, remote procedural hearings.
However, modernisation and reform of Scottish civil procedure were in contemplation long before the dreaded virus arrived. In his review published in 2009, the then Lord Justice Clerk Gill recommended a rewrite of civil justice rules to introduce a system fit for purpose in the 21st century. The Scottish Civil Justice Council set up a committee for this purpose in 2013, with subcommittees put in place to consider specific strands of procedure. A first report was published in May 2017 providing a vision for change to be introduced in the future. The committee published its second report on 3 August 2022, identifying a framework for a new method of dealing with ordinary actions in the Court of Session and Sheriff Courts. This is the second of five stages to “completely replace most civil rules”.
Some fundamental principles underpin the proposals in the report. Actions should proceed electronically as much as possible. Individuals should only attend Court where it is deemed necessary. There should be case management to determine the pace and content of actions. The same judge or sheriff should retain control of an action from start to finish. Where possible, general forms which can be adapted should be used for court applications, rather than different forms for different types of orders sought or steps to be taken. While alternative dispute resolution should not be mandatory, it must be considered.
The report containing the full details is published on the Scottish Civil Justice Council website. Key proposals illustrate the extent of the development under consideration, including the following:
Formalising pre-action procedure in all cases; Moving away from detailed pleadings to those focused on what is in dispute, with the sheriff or judge having the power to order parties to narrow or expand upon their pleadings; A case management questionnaire will require to be lodged with defences; The judge may make any order at any stage to “provide a just resolution to the dispute”; Witnesses will only attend substantive hearings when necessary and alternative means of obtaining their testimony, including by written or video recorded statement, will be utilised. Oral testimony will only be taken in person the judge or sheriff’s discretion, for example, where credibility is in issue; Parties are expected to discuss potential ADR throughout an action. Although not proposed as a mandatory requirement, the report highlights a degree of flexibility in approach should legislation be introduced ordering parties to explore this; If expert evidence is required, parties must consider the appointment of a joint expert; A judge or sheriff will have the power to decide what lines of argument are permitted at a substantive hearing and how long will be permitted to present them.
Draft rules will now be prepared to implement the new model with a view to a consultation taking place in due course for court users to provide feedback. These rules will apply only to ordinary actions and not to more specialised fields such as personal injury claims and family proceedings, which will be considered in a later phase of the programme.
As technological advances have been increasingly adopted by the Courts allowing more flexible and convenient administration of justice, measures in furtherance of this aim seem likely to be welcomed. There remain provisions for actions to proceed in paper format to protect access to justice, particularly for those representing themselves or who have lay support.
The devil will be in the detail when the new rules are presented regarding more fundamental changes proposed. It will no doubt be of interest to all court users how the exercise of balancing the efficient administration of court business with the delivery of justice is to be achieved in the modern system.
Steven Smart is a Partner and Head of Horwich Farrelly Scotland