Last year, in response to the pandemic, the Scottish Parliament passed legislation making changes to the law for conducting civil business in Scotland’s courts and tribunals.

The changes mean that any participant in civil proceedings can take part in hearings by way of live visual (television) or audio (telephone) link from any location. The changes also mean that requirements for physical attendance at hearings are currently suspended.

This makes it possible to conduct hearings where no one is physically in the same place, or in a court or tribunal building. However, the changes can be overridden by the court or tribunal where appropriate.

These changes to the law were due to expire on 30 September 2021. However, the Scottish government recently passed new legislation extending parts of the Covid laws until 31 March 2022. This means that the changes to the law regarding the conduct of civil business will continue until that date.

In May, the Judicial Institute for Scotland held a conference to consider and reflect upon the changes to the civil justice system which had been introduced at pace in response to the pandemic. The conference provided an opportunity to focus on the post-covid landscape for civil justice.

The council later discussed the key themes emerging from the conference and considered whether there were any specific procedural changes which should be developed further at this time. In particular, the conduct of civil business by electronic means.

The council agreed that there is a need to consider how beneficial elements of the current system of remote hearings can be incorporated within existing court rules. In this regard, draft rules on the mode of attendance at court hearings in the Court of Session and in ordinary cause actions in the Sheriff Court have been developed for the purposes of this public consultation.

In particular, the consultation and draft rules consider:

• which mode of hearing ie attendance by electronic means (either video or telephone), attendance in-person or a hybrid of these, is likely to be the most appropriate within given categories of civil proceedings;
• creation of a default position for certain categories of civil hearings as well as any exceptions to a default position for certain types of hearings
• consideration of the circumstances in which the default position can be over-ridden by the Court (either on application of parties or of the courts’ own accord);
• The process for making an application for attendance at a hearing in a manner other than the default position.
• The responses to this consultation will inform the Council on how best it can provide rules frameworks which facilitate and support new ways of working in the courts post-Covid and how longer term system benefits can be realised.

The council is prioritising this work which is being taken forward at pace. The consultation documents are available here. The consultation closes on 18 October 2021.