As we pass the milestone in Scotland of over a year in one form or another of lockdown we are all, for good or ill, acutely aware of the advantages and disadvantages of conducting our working lives remotely. The Courts during this period, like many other essential public services, have had to quickly adapt to this new environment of remote working. Some have welcomed this development and the ease and efficiency that comes with being able conduct remote hearings all across the country by conference calls dressed in tracksuit bottoms; whereas others have lamented the problems caused by technology: having all witnessed the salutary lesson of a lawyer appearing with a cat face filter before a decidedly unimpressed judge, having to utter the immortal words "I am not a cat".
I was instructed in the first ever remote Sheriff Court Hearing at Inverness Sheriff Court in May of last year. The hearing utilised the video conferencing software Webex which has since been adopted by the Scottish Courts. The hearing went smoothly and I was entirely sold on the premise that most if not all Sheriff Court business could be dealt with in this manner without any drawbacks; even out with the confines of a lockdown.
I have since conducted a large number of remote Sheriff Court hearings and have realised my initial entirely positive impression of remote hearings required revision as I encountered various problems I hadn't initially foresee.
I accordingly thought it would be useful to share my thoughts on what I perceive as the two main advantages and disadvantages of remote hearings and whether remote hearings will remain in a post Covid-19 environment.
- Remote hearings are significantly quicker and cheaper to conduct as parties and agents are not required to physically attend the relevant Sheriff Court building: resulting in the elimination of waiting and travel time and costs; and
- Party litigants and witnesses generally appear more relaxed and less stressed resulting in more coherent evidence: being removed from the majesty and rather intimidating atmosphere of a Court room.
- The use of remote hearings assumes access to and an ability to operate technology that may not be available to everyone; which can cause problems of connectivity and an ability to actually follow and interact with proceedings. Mixed in with the distractions of a home environment such as children and pets, hearings can be subject to significant disruption; and
- It is difficult if not impossible to ensure evidence provided remotely by witnesses is private and secure and is not being coerced or manipulated by a third party, or indeed being given by someone else entirely. An extreme example of this can be found in an American case in which the victim of an assault was in the same property as the alleged preparator during a hearing: it was only the intervention of an eagle-eyed prosecutor that noticed both parties appeared to be in the same house which saw the police intervene and the hearing brought to an end.
In summary, the time and cost savings of remote hearings means they are very appealing to the Courts, clients and agents, particularly in relation to commercial disputes in which the costs of litigation are an important consideration. Accordingly, in my opinion the efficiency of remote hearings means they are here to stay beyond the Covid-19 restrictions. In a post lockdown environment remote hearings may no longer be mandatory, but they are likely to be a permanent and appealing option for parties when referring matters to the Courts.