Andrew Tolmie

It was an ambitious target and has not been achieved – but there has been significant progress, particularly with electronic management of court documents and business, developments accelerated by the Covid-19 pandemic. The next step must be moving the administration of court and pre-litigation disputes further online with a view to speeding up the journey from claim notification to resolution and reducing the cost for court users, especially in lower value disputes.

If a claim can be resolved without court proceedings, the better for all concerned. Scotland does not, however, currently have any online portal or similar application for pre-litigation steps in damages claims. In contrast, England & Wales have two, use of which is mandatory for claims within their scope: (1) the Official Injury Claim (OIC) online application must be used for certain low value injury claims arising from road traffic incidents; and (2) the Claims Portal must be used for injury claims of up to £25,000 arising from road traffic incidents beyond the scope of OIC and for all employers’ and public liability claims of up to that value.

One year ago, the Scottish government conducted “a targeted information gathering exercise on the process for low value personal injury claims resulting from road traffic accidents”, seeking views on the introduction to Scotland of an online portal like that already in place in England. We have heard little since that exercise concluded but the idea was certainly welcomed by motor insurers and it is difficult to see the downside for claimants. If implemented effectively, low value injury claims could be dealt with by claimants directly with insurers and at a cost proportionate to the value of the injuries being claimed for.

In Scotland at present, we have an online portal, Civil Online, run by the Scottish Courts and Tribunals Service, but it doesn’t currently feature Court of Session cases and while it can be used for submission of documents in sheriff court injury cases, case tracking functionality is only available for such of those cases started on or after 1 August 2024. Further, use of Civil Online is not compulsory for any personal injury litigation in Scotland.

The only current fully digitised and mandatory aspect of the civil justice system in Scotland is Civil Online for Simple Procedure cases. This procedure is for litigated non-personal injury claims for up to £5,000 and involves compulsory digital submission with case tracking functionality and the ability to see, online, all documents and court orders in the case. It is evidence that such a system can be operated effectively in Scotland.

In England & Wales, an online Damages Claims Pilot has been running from 2021. It involves mandatory use of an online portal for the issuing of litigation within its scope and case management thereafter. This covers many injury claims at County Court level, with those courts having exclusive monetary jurisdiction up to £100,000 and with competence to hear higher value litigation.

Spurred on by pandemic necessity, the Scottish civil justice system has made some progress in using technology to improve the process of resolving disputes. Nonetheless, to achieve the objective set several years before the pandemic of a fully digitised justice system, Scotland still has work to do.

Andrew Tolmie is a partner at Clyde & Co