04 Nov 2020
Aberdein Considine Solicitor Advocate Carly Stewart looks at how technology can help to keep Scotland's courts moving during the Covid-19 pandemic.
More than six months in to this global pandemic, you might be forgiven for assuming that the Scottish courts were now fully operational by virtual means.
In the sheriff courts procedural business is now dealt with in an efficient manner, mainly by telephone or email. However, as a solicitor primarily practising in Aberdeen, I took for granted that a court the of Glasgow Sheriff Court would be up and running with video hearings.
Not so, as I discovered to my surprise less than two weeks before a proof (evidential hearing) was scheduled to take place in an important commercial action.
The Court of Session, the All Scotland Personal Injury Court and criminal courts are all well under way with video hearings but, to my astonishment, the commercial sheriff court had not yet conducted a fully remote evidential hearing. And did not have the facilities to do so.
The default position was that parties, agents and witnesses, many of whom were based in the south of England, would have to travel to Glasgow. Demonstrating the quick-changing nature of this health crisis, England’s lockdown was announced three days before the hearing, meaning that in fact it would not have been possible to go ahead “in person” and would have been cancelled at the last minute.
The sheriff was keen to attempt to hold this hearing fully remotely as a “pilot” case for the commercial court.
Representatives for both parties were dispatched to make contact with the Scottish Courts and Tribunal Service’s Electronic Services Delivery Unit to see if we could make it happen.
The unit were not quick off the mark in responding, so my opposing counsel called in the Dean of the Faculty of Advocates and I asked the Civil Justice Committee of the Law Society of Scotland to weigh in too.
With enough pester-power, progress was made. Training was delivered to the court staff and a test run was set up for the afternoon before the proof for all parties, agents and witnesses to have a run through how it would work. I’ll come back to that.
As noted above, representatives on both sides of the case worked hard to help make the remote proof happen. The collaboration doesn’t end there. The court rules do not yet reflect the possibility of fully remote hearings. There is some guidance in the Court of Session area of the Scottish Court website which is useful.
However, to overcome the gaps in the rules required representatives on both sides of the case working together; to agree how the video hearing was going to work in terms of attendees, agreeing the instructions that were to be given to witnesses in advance, and preparing a joint bundle of documents.
There may have been (unjustified) public nay-sayers of the legal profession recently (yes, Prime Minister, I’m talking to you). I think this example highlights one of the most admirable qualities of members of the Scottish legal profession, in my humble opinion. I challenge you to find another industry where adversarial opponents (or competitors, if you will) can work together, professionally and collaboratively, towards a common end, whilst still each fiercely defending their own client’s interests.
The test run for the hearing was conducted by WebEx. The call involved the sheriff, the clerk, counsel on each side, a solicitor on each side, a (traditional) short-hand writer and 5 witnesses. It was never going to run completely smoothly. There were one or two parties whose video did not work but it was hoped that would be resolved for the main hearing. Otherwise, there was no issue with network connectivity and on-screen document sharing worked very well.
The sheriff commented that he was very pleasantly surprised at how effective it was and he was pleased that he could clearly hear and see the witnesses and counsel. For my part, it was a little undesirable that there was not a “waiting room” for witnesses. I understand from those who have conducted video hearings in other courts that facility should be there.
The test run was a frantic 90 minutes of texting witnesses and parties, telling them when it was their turn to log on, ironing out log on issues etc. That would have gone more smoothly in the main hearing as there would have been a clear witness order. It was also disappointing that a shorthand writer was still required, rather than just recording the proceedings.
Other than exceptional cases which, for a host of reasons, may not be suitable for remote hearings, I have no doubt that the delivery of civil justice would in way have been hampered by the remote nature of the hearing.
All relevant parties could clearly be seen and heard on screen at the appropriate time and the sheriff expressed that he was very satisfied with how well it worked. Indeed, in the absence of a remote hearing, this case would have been delayed for months or perhaps indefinitely, which would not be delivering civil justice at all, given the commercial nature of the dispute involved.
On the whole, as a pilot, I thought it worked very well indeed. The only thing missing was the ability to engage in jovial banter with one’s opponent or go for a coffee with counsel and the client. But… one day we’ll meet again. Until then, I strongly advocate the use of video-hearings where suitable to do so.