Technology in Class Actions in Scotland

We recently looked at what those involved in arbitration and other forms of dispute resolution want from technology. But where can technology provide benefits in class actions? A group of lawyers in the USA are urging the Federal Courts there to expand its use for witness evidence.

In certain circumstances, under US procedure, where a witness cannot give evidence to a court in person, pre-recorded videos of their evidence, filmed well before the trial, can be played to the court. These are recordings of their "depositions", a process that fans of American legal dramas will be familiar with. The lawyers writing to the Federal authorities note that deposition evidence can be "spliced" and "disjointed". The inference is that what is played to the court might not be the best representation of the witness's evidence.

The Scottish position

The position is different in Scotland, where pre-recorded depositions are unheard of. Traditionally, where a witness might not be able to attend court in person, be that because of their distance from the court or unavoidable commitments at the time of trial, the court could give permission for a separate hearing to take place before the judge who will hear the trial, or a person authorised by the judge. This is known as taking evidence "on commission". There has also been, for some time, the possibility of taking evidence remotely by video (called a "live link") but, until recently, it was a cumbersome process that wasn't often used.

Scottish court procedure has, though, moved on at some pace since 2020. The Scottish courts' service has invested in technology to allow fully virtual and hybrid hearings to take place. The courts' rules now say that the default position for procedural type hearings is that they take place electronically. Traditional thoughts that it is more difficult to tell whether or not a witness is telling the truth without being able to observe them in the physical witness box have died down.

It was confirmed late in 2023 that there were no procedural hoops to jump through in Scottish court actions to ensure that a witness based overseas has the permission of the government of the country they are located in to give evidence. All that matters is that an application is made to, and approved by, the court in Scotland. The test for approval of a witness giving remote evidence is "cause shown", which means a good reason must be given but it is not the highest of bars.

Technological advantages

What are the benefits of remote evidence? The obvious advantage in the context of class actions in Scotland, which can only be heard in the Court of Session in Edinburgh, is that members of the class who are required to give evidence, but live considerable distances from Edinburgh, should be able to give their evidence virtually. The growing use of technology in the Scottish courts may in the future also allow members of the Class to follow trials and other hearings.

The advantages go beyond that, however. Class actions in one country often involve issues that are being litigated in many other jurisdictions. Factual witnesses might be located all around the world. The best experts to give evidence on the issues might well be based somewhere far away from where the court hearing is taking place. In the past, those people would have had no option but to travel to the physical court building, with the environmental, time and cost implications that brings. Otherwise, the court might have simply been deprived of that witness's evidence or a party might be forced to instruct a less impressive expert witness. The increased use in technology, however, should make those concerns a thing of the past.