COVID-19: Changes to Civil Court Procedures

Out with the old, in with the new - how the pandemic has changed the Scottish Court's relationship with technology.

COVID-19 has meant legal practitioners are being required to adapt to a new way of working and a rapidly evolving legal system. We highlight key changes to Scottish civil court procedures  – temporary and potentially permanent.

Technology and the court process are not strangers. For several years, measures and methods have been introduced as procedure has slowly moved into the 21st Century. Now, in the middle of the COVID-19 pandemic, from crisis has arisen opportunity, and with it the necessity to discover a new way of conducting court business.

What has changed?

The changes to the court process during the pandemic range from simple, administrative tasks to conducting hearings from the comfort of your own home. With a few exceptions, all documents are now to be lodged electronically either via email or Civil Online if the case is simple procedure. For many practitioners, this is a welcome change as it not only makes the lodging process more efficient, it also means a departure from paper filing!

Hearings and attendance at court

Most court hearings are now being dealt with remotely, over the phone or by video conference. Witnesses are also attending hearings virtually, which reduces pressure as they can give evidence from their home and establishes a more relaxed atmosphere.

Previously, technology was used in the courts, but it wasn’t considered the norm. For example, vulnerable witnesses can and have always been able to give evidence via video link in hearings in the civil and criminal courts. Now, with the introduction of virtual court proceedings, gone are the days of travelling far to attend court and stand in front of the Sheriff. This will certainly be good news for many practitioners who are all too familiar with travelling around the country for court hearings, though some may miss the routine and gravitas that comes with standing in the courtroom.

The time taken for hearings has also been cut down drastically, with written submissions, documents and authorities increasingly being relied upon to set out parties’ positions ahead of a hearing. This is good news for clients, as the less time their lawyer spends in the courtroom, the fewer costs they must pay.

Simple procedure cases

Simple procedure cases have also undergone something of a revolution since the process replaced small claims in 2016. As of 1 December 2020, it will become mandatory for all simple procedure claims to be submitted via Civil Online, the court’s online case managing tool, with a view to running cases virtually from beginning to end. This is something that’s a matter of pride for Shoosmiths as a firm, due to the fact we were involved in the development of the Application Programming Interface (API), which was created to make it easier for firms to transfer applications from their own systems directly onto Civil Online.

Time will tell if this revolution will make its way into Ordinary Cause and Court of Session  actions in the future.

Will virtual hearings become the default?

The answer to this question remains unclear. For many, virtual hearings are useful and progressive, with the view that technology has enabled the court process to become even more efficient.

However, if virtual hearings are to continue being used, care must be taken to ensure they’re appropriate in every instance. For example, a proof where multiple witnesses are involved may not be appropriate for a virtual hearing due to issues with administration of justice. There may also be issues for lay persons, such as a respondent in a simple procedure case or a witness who may not have access to a laptop or a reliable internet connection. The use of greater technology cannot come at the expense of due process.

During the pandemic, what lies ahead is rather uncertain but the move towards a more modern court system is working well in practice and, as many will hope, is a change that is here to stay.