New project aimed at reducing the environmental impact of dispute resolution in Scotland

E-Ming Fong is a Partner in the Dispute Resolution team, Harper Macleod LLP

That’s a question that my colleagues and I have been considering more and more, particularly given the technological progress which has been made in the way we conduct court proceedings as a result of the global pandemic.

The product of our conversations has seen Harper Macleod launch “Greener Actions” in October, a project primarily aimed at reducing the environmental impact of dispute resolution in Scotland.

In the same way that we use the courts to shape our laws through legal precedent, we believe all court users in Scotland need to work collaboratively to identify and explore greener options so that we can shape a sustainable and responsible future, whilst maintaining the utmost judicial standards.

The importance of Greener Actions in the context of litigation cannot be overstated. It may be true that had it not been for the pandemic, we would not have introduced virtual court hearings with such speed and scope but now they are here, we are compelled to assess the suitability of the enforced measures to the post-pandemic judicial system.

Just because something can be done does not necessarily mean it ought to be done. Our aim is to explore all available options so that we can make balanced and informed choices on how we access courts in Scotland in the future.

Beyond Scotland, Greener Actions will aim to collaborate with similar initiatives in other jurisdictions to ensure that innovations from around the world are not ignored. We have shared aims and objectives with, for example, the Greener Litigation Pledge introduced in England and Wales in the summer of 2021.

However, Greener Actions seeks to go further than just looking at measures which could reduce environmental impact and is firmly rooted in ESG principles. It is not therefore only about the environmental aspect but also the social and governance aspects.

On governance, the Scottish Civil Justice Council, the body in Scotland responsible for our court rules, is currently consulting on a proposal which, if passed, may see virtual hearings being the default position. While the potential environmental benefits and efficiencies of virtual hearings cannot be ignored – from the reduction in travel to the use of electronic bundles of documents – we need to ensure our judicial system remains accessible to all.

As an example, in pre-pandemic times, the taking of evidence by video-link was judicially controlled, both in terms of its allowance and the location from where a witness could give evidence (which was usually a court local to the witness in the presence of a clerk of court). If, in the future, evidence by video link is to be the norm, we will also have to ensure that rules are in place by which meaningful judicial oversight can be ensured.

On the social aspect, courts are not just a place for justice to be meted out, but they are also places of teaching and learning. Law students, trainee solicitors, advocates’ devils and qualified practitioners at all levels have, until now, benefited from the spirited debate and collegiate dialogue which takes place within a courtroom. Greener Actions seeks to ensure this this tradition continues and that our courtrooms continue to be classrooms for our future lawyers.

My colleagues and I don’t claim to have all the answers - the key to the success of a project such as Greener Actions will be collaboration. That’s why we are inviting all court users and stakeholders involved in litigation in Scotland to join the Greener Actions Focus Group to create an action plan for the future of litigation in the country’s courts.

You can see more about the proposed aims of Greener Actions at www.harpermacleod.co.uk/greener-actions

E-Ming Fong is a Partner in the Dispute Resolution team, Harper Macleod

New project aimed at reducing the environmental impact of dispute resolution in Scotland - E-Ming Fong