Member Article

The issue of online court hearings, and many other types of dispute resolution processes, has been a hot topic over the last few months as restrictions have eased and court users try to figure out what the new normal is, or should be.

The Scottish Civil Justice Council has just closed a consultation that seeks views on proposed new rules covering the most appropriate mode of attendance at civil court hearings in the Court of Session and in the Sheriff Courts in Scotland. The proposed new rules are a significant change in approach to hearings, effectively adopting the emergency measures introduced during the pandemic as the default going forward. They are intended to provide a general presumption as to:

• the types of hearings generally considered suitable for an in-person hearing;
• the types of hearings generally considered suitable for attendance by electronic means;
• how the parties can apply to change the mode of attendance if an individual’s circumstances justify a departure from the general presumption; and
• how the court can direct a change in the mode of attendance, if that is required in the interests of justice.

We are not convinced that a change to a default where hearings are conducted online is the best way forward. While we recognise the legal profession and court service have, in the main, adapted very well to these emergency measures, this does not mean that those emergency measures are suitable in the longer term.

The question of whether a case is suitable for an online hearing is more nuanced than just the subject matter of the case. We think other relevant factors include:

• the location of the parties; 
• equality of arms; 
• minimising travel; 
• the volume of documentation; 
• the purpose of the hearing; 
• cost, which will be an issue for some parties and solicitors, in particular relating to IT equipment and accommodating remote hearings; and
• if there are party litigants an online proof might pose a particular challenge, given the work required to coordinate witnesses, in particular.

In summary, we consider that the proposed approach is too rigid. Instead, the Council should think again about the wider issues. We would support a change to the rules that allows parties to nominate an approach to the case at the outset, and if the parties are not agreed then the court would rule on that at the first procedural hearing.

A copy of our full response is here.

For more information please contact John MacKenzie, Partner in our commercial disputes team, at [email protected], or your usual Shepherd and Wedderburn contact.