Over the last couple of years, we have seen a rapid increase in the use of remote hearings in place of in-person attendance at court as a result of the Covid-19 pandemic. As many businesses begin to embrace a hybrid way of working, the question for civil litigators is where will their workplace be? Will we see a return to the court room, or will the increased use of remote hearings be a change which is here to stay?
Scottish Civil Justice Council ("SCJC") consultation
Last year the SCJC published its consultation on the Mode of Attendance at Court Hearings, seeking responses on a proposed set of draft rules for both the Court of Session and Sheriff Court. The SCJC have now published their analysis of responses received from 82 organisations, (including Brodies), and individuals (albeit a lack of 'balancing' responses from litigants and the general public was noted).
A presumption in favour of in-person hearings?
Less than 1 in 5 supported the use of a general presumption in favour of in-person hearings for civil actions which fell within the list of case categories in the draft rules.
Instead, a less complex scheme, that would allow a more flexible approach to be taken was preferred, with the decision as to whether a hearing should be remote or in-person to be taken on a case-by-case basis.
Several respondents favoured the alternative approach of a general presumption in favour of in-person hearings for all substantive business, to be departed from at the court's discretion.
A presumption in favour of hearings by electronic means?
Similarly, less than 1 in 5 supported the use of a general presumption in favour of hearings by electronic means for civil actions which fell within the list of case categories in the draft rules.
There was a general perception from the respondents that electronic hearings provide a significantly lower standard of service in comparison with the experience of in-person hearings, alongside a general dislike of telephone hearings and the long timeslots allocated for bulk Webex courts in Sheriff Court matters.
The analysis shows a desire from the legal profession for flexibility when it comes to court attendance and no one 'workplace' for litigators is favoured over another. What was clear, however, is that consistency is key, with most respondents taking the view that, so far as practicable, there should be a consistent approach between the Court of Session and Sheriff Court, along with consistency between the approach in Sheriff Courts in different jurisdictions.
Whilst no clear conclusion can be drawn from the analysis as to exactly what the future of the workplace will look like for litigators, what is clear is that a flexible, hybrid approach to court attendance is likely to be the way forward in the coming years.