Legal experts welcome Scottish courts’ new hybrid approach

At the height of the pandemic most hearings in Scotland were held virtually, with only the most serious criminal trials being heard in courtrooms while socially distanced juries watched proceedings remotely on cinema screens. But changes to guidance from the Scottish Courts and Tribunal Service (SCTS) (3 pages/244KB PDF) have signalled a return to in person hearings for civil litigation too.

Brian Grierson, litigation expert at Pinsent Masons, welcomed the move but said that it was “not yet back to ‘business as usual’” for Scottish courts. He added: “There are signs, however, that the SCTS is moving towards a hybrid approach to virtual and in person hearings in the highest courts for civil litigation. This is possibly a sign of things to come in which the courts retain the flexibility of the hybrid system and save valuable travel and waiting time for often short procedural hearings, while returning to in-person business for substantive civil business, which can be more effective for longer hearings.”

According to the new guidance for the Court of Session, while most procedural hearings will largely take place via WebEx - or, if directed by the court, by written submissions - substantive hearings will return to courtrooms. Parties or witnesses may however be heard remotely if they can provide a justification. Meanwhile, sheriff court cases, proofs and other substantive hearings, along with all procedural hearings, debates and fatal accident inquiries, will be conducted via WebEx unless otherwise directed. In the case of proofs and substantive hearings, parties may advise the court if they do not think appearing via videolink is possible.

At the Sheriff Appeal Court all procedural hearings, including permission hearings, will take place via WebEx or by written submissions. Part of each hearing can be conducted in-person if a good reason is provided. Substantive appeal hearings and accelerated appeals will be conducted remotely, while the procedural appeal sheriff will determine how appeals proceedings under standard procedure will be conducted, having heard the parties’ arguments.

Fiona Cameron, litigation expert at Pinsent Masons, said: “Reverting to in-person for most substantive hearings in the Court of Session is welcome and is in line with the responses to the SCTS consultation on mode of attendance last year. In particular, remote hearings have been generally felt to be less effective at testing arguments and witness credibility and in general are not conducive to ‘effective courtroom communication.’”

“Of particular concern to some respondents was the perceived informality of remote hearings compared to the solemnity of in person attendance, with that solemnity adding legitimacy in the public’s view. There were also concerns that Scotland should not be disadvantaged as a forum of choice for litigation, and in particular commercial litigation, by adopting a different position from that in England and Wales - particularly where that was done without full and proper consideration and data analysis,” Cameron said.

She added: “Any suggestion that Scotland may not be able to provide a court capable of full and proper consideration of what may be complex and lengthy facts will undoubtedly discourage litigation here. Thankfully that has been avoided.”

The SCTS guidance also states that, while physical distancing is no longer mandatory in court buildings, “sensible” distancing is still encouraged. Likewise, face coverings are not required inside court buildings, though court users are encouraged to wear them. During court proceedings, however, all those present inside the courtroom will be required to wear a face covering.