Over the past year, we have all experienced changes to the way we live our lives, both personally and professionally. One of the biggest changes for most has been adapting to working from home, juggling home schooling and finding a quiet workspace. In addition to the various zoom calls throughout the week, lawyers have also had to adjust to conducting court hearings from home.
Last March, when the national lockdown was introduced the civil courts closed down to all but essential business. As a result, cases were left in limbo while the courts put provisions in place for the lodging of documents and holding hearings. Gradually hearings commenced again with one key difference, they would be held remotely. In normal circumstances, all hearings would be conducted in person with parties required to attend the court, irrespective of location. As a result of covid-19, the courts put provisions in place which meant procedural hearings would be held by telephone in Sheriff Courts and video conference hearings would be used in the All Scotland Personal Injury Court and Court of Session. In addition, provisions were made for civil proofs to recommence by way of video conference to allow progress to be made on cases.
Virtual hearings can be very convenient for parties. Not only does it save on travelling time to physically attend court, parties are also able to avoid spending prolonged periods of time waiting on their case calling before the court. This means that procedural hearings can be dealt with promptly, with minimal disruption to the working day. For example, a short hearing lasting 30 minutes could result in a full day away from the office when taking account of travelling and waiting time at the court. Being able to dial into a telephone conference with the opposing party and Sheriff, and conducting the hearing in this way saves significant periods of working time resulting in increased efficiency.
In addition to the convenience of location, virtual hearings have resulted in greater discussion between parties and disclosure of information. The courts have issued guidance which instructs parties to collaborate prior to the case calling in order to reach a resolution, where possible. For example, for a hearing in the personal injury court on a Monday morning, parties require to inform the court and opponent who will be attending the hearing by the Wednesday of the week before. Thereafter, on the Thursday, parties require to lodge with the court any submissions they wish to make and disclose this bundle to the other side. As a result, parties have the opportunity to prepare for the hearing and can have a discussion about the case, should they wish to do so, with a view to resolving matters, in advance of a hearing. This differs to the working practices in pre-covid times where authorities could be disclosed across the table immediately prior to the hearing with little to no time for parties to have a pragmatic discussion.
Where a case is to proceed to proof (a full evidentiary hearing), parties are required to provide the court with details of the case 21 days prior to the hearing date. This note explores the issues which remain in dispute between the parties, which witnesses shall be called to address specific points of the case and how much court time each witness shall require. This note allows the court to make the necessary arrangements for the hearing and prioritise court time. Again, this process has resulted in earlier discussions regarding the hearing between parties and encourages discussions regarding the case as parties are asked to submit a joint note, where possible.
As much as there are benefits to virtual hearings, equally there are drawbacks. Conducting a court hearing from home can be a logistical nightmare. When conducting a virtual hearing, I have found it helpful to have a laptop set up for the video link to the court. In addition, a second device to take notes and a further device to access my electronic file is helpful. This is far more than required for an in-person attendance at court where a hearing would be done with a pen, paper and physical file!
As well as difficulties with the amount of technology required, IT issues can also be challenging. Poor connections can make it more difficult for hearings to run smoothly. Again, an issue which is not a problem when attending court in person. In addition, technology can also malfunction and cause difficulties. For example, in America a few weeks ago a lawyer attended a court hearing via Zoom and when he logged in, to everyone’s surprise, his screen had a cat filter which he was unable to remove. The video has subsequently circulated on social media where, most notably, the lawyer clarified to the court that he was, in fact, not a cat. Fortunately, the software used by the Scottish courts does not allow for filters so no risk of a feline appearance (other than a stray pet wandering into shot) but still a concern that technology could go wrong!
The move to virtual hearings has meant that witnesses have also been able to provide evidence remotely without the need to travel to courts for evidentiary hearings. This has an obvious benefit of convenience to the witness in that they don’t require to take as much time away from their day to provide evidence. Like everything in the Covid world, this is a less than perfect system. Again, in America last week, a defendant in a criminal case attempted to attend a virtual hearing to provide evidence while he was at work. He had been charged with a driving offence and was due to appear in court. The main issue with his multi-tasking court appearance was that he is a surgeon and dialled into the hearing from the operating room while he was carrying out surgery on a patient. The judge did not allow the hearing to proceed as it was inappropriate given the nature of the task being carried out by the surgeon. The concern with witnesses not attending a physical courtroom is that they may not appreciate the serious task of being cited to attend court to give evidence. As demonstrated by the surgeon, if physical attendance was required, he would have been providing the court with his full attention, would have been dressed appropriately and not attempting to multi-task! The process of attending court and being asked to take an oath or affirm (which is still required for virtual hearings) should ensure the witness is aware of the implications of the evidence which they shall give and assist in understanding the importance of providing evidence to a court of law.
At the moment, practitioners do not know whether the changes brought in by the courts in response to the pandemic shall be a permanent fixture to the Scottish court system. It can certainly be argued that there are benefits to procedural hearings being held remotely for the purposes of efficiency for the courts and for solicitors. For evidentiary hearings, my view is that physical attendance at a court should return, when it is safe to do so, to ensure the best evidence can be obtained from witnesses and to ensure the process can run as smoothly as possible.
Blog by Eilish Lindsay, Associate Solicitor