My recent article on the impact of COVID-19 on Personal Injury claims commented that whilst the first virtual hearing had taken place in the Inner House of the Court of Session in April, there had not, at that stage been any cases where witness evidence had been led virtually. It has now been reported that the first proof (trial) with witnesses giving evidence via video conferencing platform, Webex, happened in the Commercial Court of the Outer House on 16-18 June.

The proof (the first to be heard in the Court of Session since social distancing measures were introduced) centred on the supply of materials and applicable terms of sale. The consensus among those who took part was that it ran smoothly. This was partly because lengthy witness evidence was not required; but it was also down to good preparation, hosting and case management by counsel, the clerk and judge respectively.

The Proof

Similar to most court hearings, the process began with counsel entering into an initial discussion with the clerk prior to the judge joining; thereafter, others were allowed access and the hearing formally commenced.

After administering the oath or affirmation (witnesses were asked pre-trial to indicate their preference), Lord Clark gave detailed directions to each on their responsibilities and how the hearing would be conducted. Evidence was then led via video link from eight witnesses in locations across the UK. Although Webex does allow documents to be shared on screen, each witness was sent a sealed pack (containing witness statements and copies of core productions) in advance.

Certain workarounds had to be put in place to avoid undermining the principles of normal civil evidence procedure:

  • witnesses were observed to ensure that third parties were not tutoring them whilst giving evidence;
  • after giving evidence, witnesses were instructed to destroy their pack or return it to the solicitor, in keeping with the rule that documents should not generally be removed from court for GDPR reasons; and
  • instead of being asked to leave the court, when an objection was taken, witnesses were placed into a separate “training session” where they waited until the issue had been dealt with.

Teething problems

As with the Inner House proceedings conducted remotely, preparation was key to the success of the proof. Additional challenges came from having to ensure that the witnesses were also familiar with the technology and although there were the inevitable technical glitches, solutions were implemented quickly. For instance, the court broke into a “practice session” where those viewing were disconnected for less than 15 minutes while an echo (making it hard to hear one witness' evidence) was fixed.

Some witnesses reported difficulties logging in and found Webex to be temperamental. In response, the Scottish Courts and Tribunal Service's IT department suggested that slow broadband issues may be remedied by ensuring others in a household were not using the broadband when a case was ongoing. In addition, test runs with counsel and, separately, witnesses were encouraged to resolve issues in advance.

What can we learn?

Though the use of virtual court technology has been thrust upon the courts as a result of current circumstances, the opportunity to evolve its use should be embraced – not with a view to replacing the physical courtroom, but rather to supplement it. While there is room for improvement, the Outer House virtual proof is undoubtedly a positive step in the right direction and it is anticipated that virtual proofs will also be rolled out in the personal injury court.

Whichever role virtual court technology plays longer term, preparation is central to its success. With this in mind, we are preparing to run a mock virtual proof to allow us to iron out any teething problems in advance.

Finally, a word on the most recent court guidance on the phased return to "normal", is that the Keeper is fixing diets in the Court of Session with effect from Monday 6 July and Simple Procedure cases are restarting from 20 July. Civil jury trials, personal injury and Ordinary proofs of four days plus, can now also be fixed. As a sign of the times, the Keeper is going to use the Rolls of Court – and Twitter – to inform us of the earliest available dates for fixing those types of proof.