The Lord President of the Scottish court system, Lord Carloway, recently called for primary legislation to assist the recovery of our courts. It is unlikely that anyone involved in working with the Scottish Courts and Tribunal Service (SCTS) would disagree that tinkering around the edges won't work.

The underlying issue is one of volume. As the UK and Scottish Governments start to role out plans for economic recovery, there are complex contractual issues and debts accumulating for businesses and people to deal with.

As a result of COVID-19 restrictions, most hearings scheduled for March to August were discharged creating an inevitable backlog.

The Law Society is working with the SCTS on solutions, with some practical steps for immediate implementation underway. More people have embraced the introduction of technology (the digital civil court process could be within our reach given modern document management systems and the adoption of electronic signatures); more alternative dispute resolution can encourage settlement and alleviate the backlog (is it time for a compulsory mediation rule in commercial actions with expenses consequences?), and more remote case management via telephone and video conference is well underway.

The lesson here is clear, that we cannot, and should not, go back to what we were doing before. Measures can always be introduced to ensure that access to justice is preserved for all. There will be cases where parties do not have access to the necessary IT, so appropriate provisions will have to be made. Yet many users of the court service already have the technology to support remote and efficient progress of cases – something we will need to help with pent up demand.

The efforts of the courts to pivot towards remote hearings is to be applauded. We have, of course, been doing that in the commercial court for years but COVID-19 has put a big hand on the back of us all to move towards greater remote efficiency and there could well be cost savings for clients (and the court system itself) as the dust settles.

Solicitors and advocates, combined with the judiciary and the SCTS, are all shouldering the responsibility to work together on solutions. Lord Carloway stated that the court and tribunal system should be a service, and not just a place, where access to justice is administered for people and businesses.

Leaving to one side the important function of the criminal courts –the ongoing health situation and economic impacts in Scotland will inevitably lead to greater demand on the civil courts.

There is a genuine willingness in Scotland's Commercial Courts to move forward with dates for virtual trials. There are cases where that can work but there will be some cases where the interests of justice and fairness could dictate otherwise. Likewise, health and safety concerns and risk assessments will be important considerations for all involved for some time. Recent guidance from the Scottish courts is starting to bring further clarity which will allow progress here.

Access to justice with effective remedies for parties in distress is an essential pillar of our society. The process of change has commenced and there is an opportunity for primary legislation to augment the steps already underway. With some further investment and careful planning, we should have an opportunity to set up a more modern civil justice system which will be fit for purpose for years to come.

This article first appeared in The Herald on 13 July 2020


Stephen Goldie

Managing Partner