Ailie McGowan

The coronavirus pandemic and current enforcement of ‘lockdown’ measures in Scotland has sharply brought into focus the need for a fully functioning digitalised court system.

While it’s hardly ‘business as usual’, many legal firms are successfully operating by adopting agile working practices and embracing key technology platforms to ensure their staff are equipped with the necessary tools to effectively work from home. Unfortunately, the same cannot be said of the Scottish courts that have been much slower to adapt to the unfolding situation. This has resulted in most ‘non-urgent’ civil court business grinding to a halt.

In an article for The Scotsman (October 2019) I argued that it was time for the Scottish courts and our legal profession alike to embrace all the benefits of the digital age, in order to reap the short and longer-term efficiencies offered by legal tech. Legal firms are increasingly recognising the value of digital platforms and innovations to support clients and in-house systems. However, the current lockdown underlines that for the Scottish courts, achieving a fully functioning digitalised court system cannot simply be an ambition. It is a necessity.

To be fair, positive steps have been made to commence digital court hearings in Scotland’s highest civil court, the Court of Session. It considers a wide range of cases, including high value claims over £100,000. In mid-April, the Scottish Courts and Tribunals Service announced that they are increasing their capability for judges and clerks sitting in the Court of Session to work remotely.

Indeed, the Court of Session Inner House has now recommenced appeal hearings by operating a virtual court under the CISCO WebEx video conferencing platform. Judges will also sit in the Outer House to deal with procedural matters via telephone conference.

However, the majority of civil court cases in Scotland are raised in the sheriff courts which have exclusive jurisdiction to hear cases with a value of up to £100,000. At present, during the ongoing lockdown period, civil business in the sheriff courts is limited to urgent and necessary cases, with telephone conferencing and written submissions used to support proceedings. This has resulted in many civil court actions being put on hold. Consequently, those currently embroiled in civil disputes, which may be critical for an individual or company but not deemed ‘urgent’ by the court, are left with no resolution for the foreseeable future.

If the Scottish courts cannot efficiently progress civil disputes during this turbulent time, litigants may, where possible, look to other forums to resolve their disputes. For example, parties who seek an alternative option to the Scottish courts may consider mediation. This could apply to both new disputes and those currently on hold in the Scottish courts system.

Another potential avenue for litigants, in disputes where both the Scottish and English / Welsh courts have jurisdiction, is to raise claims in the latter courts. Notably, in England and Wales, many civil court hearings are continuing to proceed by way of telephone and video conferencing. However, the option of looking south of the border to progress a dispute isn’t open to cases already raised in the Scottish courts.

Undoubtedly, those pursuing civil claims through the Scottish courts will be keen to see their case progress with minimum delay. Yet with medical opinion noting the COVID-19 situation may persist for months to come, many litigants may need to resign themselves to a protracted timescale. Faced with a backlog of cases and a pressing need for efficiencies, it’s a further reminder why it’s imperative for the Scottish courts to recognise the need to prioritise the creation of a digitalised civil court system.

Ailie McGowan is a solicitor at Shoosmiths