Questions about fairness and access to justice remain if remote hearings to become permanent - Vikki Melville and Gordon Keyden

Gordon Keyden, Consultant, Clyde & CoGordon Keyden, Consultant, Clyde & Co
Gordon Keyden, Consultant, Clyde & Co
The pandemic impacted all elements of our daily life, and it will continue to do so. Working from home, online socialising and teaching remotely all became the norm in a way that had seemed inconceivable.

However, what of online justice? The increased use of digital technology as part of the overall modernisation of the civil court system was already being implemented prior to the pandemic, albeit to a limited extent and slowly. Nonetheless, Herculean efforts were required to keep the Scottish justice system running from March 2020 onwards.

The Scottish Courts and Tribunal Service, and all court users were forced, at short notice, to adapt to electronic administration and virtual hearings. After initial teething problems, the newfound way of dealing with litigation allowed cases to be raised and progress through the system as best as possible.

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Yet it is important to take stock. As and when we are able to move away from restrictive measures, what is the likelihood of measures such as electronic hearings remaining in place? Perhaps more importantly just because they can remain in place, should they?

Vikki Melville, Managing Partner for Scotland, Clyde & CoVikki Melville, Managing Partner for Scotland, Clyde & Co
Vikki Melville, Managing Partner for Scotland, Clyde & Co

The Scottish Civil Justice Council (SCJC) conducted a recent consultation. Concluding in November, it asked for opinions on proposed new rules covering the most appropriate mode of attendance at civil hearings in the Court of Session and the sheriff court, as well as moving from a substantially paper-based administration to electronic digital working.

Some of the draft rules propose to permanently formalise the use of electronic hearings in specific situations in the civil court system, and also make them the preferred method in other instances, unless the parties argue otherwise.

In other words, remote hearings would become the default position rather than in-person hearings.

Electronic or virtual hearings carry benefits in certain circumstances, including a reduction in costs, administration and time. However, the perception of ‘virtual justice’ can be somewhat negative compared to in-person hearings. This may be particularly relevant in substantive or contentious hearings, and where individuals feel they deserve their ‘day in court’.

A balance needs to be struck, especially as the proposals advanced by the SCJC were not supported by empirical data.

There remain legitimate questions about fairness and access to justice if remote hearings are to become a permanent fixture in several parts of the civil justice system. The draft rules also seek to advance changes at a time when the court system is in a continued state of flux due to the pandemic. Temporary adaptation to forced circumstances is much different to permanent change requiring significant investment in technology.

However even with the most efficient technology, we shouldn’t understate the impact of full-time virtual working on mental well-being. In-person hearings afford regular opportunities to engage in face-to-face contact between individuals outside the doors of the court.

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In a similar vein, the ability for junior lawyers to learn the tools of their trade from others, as well as helping to establish their own peer network, is diminished. These important parts of professional life – often forged over a coffee before a hearing, or a celebratory or commiserating drink after a challenging hearing – are lost when parties just dial in to court.

Access to justice was rightly emphasised in the consultation document as a key concern yet no empirical data on the impact of the proposals on the public was provided, and the question of the perception of access to justice was not considered.

Correspondingly, the quality of access of justice must be paramount. One proposal indicates that hearings dealing with a point of law of importance or difficulty should be handled in-person. This proposal suggests there is an implicit acceptance that in-person hearings are a superior option to electronic hearings in certain instances, and ties into the perception of justice via remote means.

Any changes must be mindful of these issues.

It is clear electronic hearings carry a significant benefit, but the pursuit of digital measures should not be at the expense of fairness and access to justice within the civil justice system. Any changes proposed should be based on a proportionate and measured response to the views of those who are using (and paying to use) the court on a regular basis.

Vikki Melville, Managing Partner for Scotland, and Gordon Keyden, Consultant, Clyde & Co