After an initial period of hearing no business due to the COVID-19 pandemic, Scotland's highest civil appeal court has begun to hear cases online. That is good news for court users, but these actions reflect a small number of the overall caseload within the courts system. What is the position in other courts?
The Outer House of the Court of Session is now beginning to deal with procedural matters in existing cases by telephone or by written submission. Hearings requiring the attendance of witnesses will still be postponed until a later date.
As we blogged about previously, the sheriff courts across Scotland are now concentrated into ten hubs as a result of the coronavirus restrictions. Business from the smaller sheriff courts has been re-directed to these hubs. The hubs are primarily dealing with urgent matters only but where parties can demonstrate that there is a "justifiable reason" for an early resolution in a case, and provided no substantial evidence requires to be heard, some matters may be allowed to progress remotely. Essential court documents will be provided by parties electronically and any hearings will be conducted by telephone.
To provide clarity on what "urgent" means, the courts service has published guidance on the business that the sheriff courts and the Court of Session will deal with for the time being.
Both levels of court will deal with applications for interim interdict. These are temporary court orders which stop someone from committing a wrong or infringing the applicant's legal rights. By their nature they should always be urgent and are often sought as temporary relief until a full court hearing can be arranged. Examples of the situations in which they might be sought could include asking a judge to prohibit publication of a potentially defamatory newspaper article, stop an occupier of a house from being removed, or prevent someone's intellectual property rights from being infringed.
Similarly, caveats can still be lodged in both the sheriff courts and the Court of Session. These are an "early warning system", which is peculiar to the Scottish legal system. A caveat lodged in a court entitles the holder to receive notice before any application for an interim order against that party can be heard in that particular court. This means they get the chance to attend the hearing and oppose the order. This would not necessarily otherwise be the case in respect of, for example, an application for interim interdict (see above).
Where the time limit for bringing a particular case is about to expire, the courts will continue to deal with writs and summonses. This means that a pursuer's right to raise proceedings should not be lost as a result of the reduced operations of the courts during the pandemic.
A range of applications relating to the care and protection of children will continue to be considered. This is also the case for various types of application that aim at the prevention of harm, including those relating to adults with incapacities, anti-social behaviour, sexual harm, and non-harassment orders.
There appears to be some flexibility beyond this list and the courts will also deal with applications that they deem to fall under the catch-all description of "urgent".
Despite the lockdown, the courts are not shut. Many actions are effectively paused, but businesses should still contact solicitors about making urgent applications to preserve their legal rights.