Dean of Faculty and Lord Hope warn against attempts to let civil justice languish online

Roddy Dunlop QC

Draft rules prepared by the Scottish Civil Justice Council – which are currently out for consultation – seek to increase the coverage of online courts. When first published, the SCJC’s response window for the consulation was only half that normally given. It has since been extended.

The Lord President, Lord Carloway, said in a speech last month marking the opening of the new legal year that “using WebEx instead of an in-person hearing has few, if any, cost saving benefits to SCTS”. The purpose of using online systems, he said, was “to increase the efficiency of the system, to improve the quality of justice, to extend access to justice and to reduce the time taken by others, including the legal profession and witnesses”.

The Faculty of Advocates, however, opposes the plans. Dean of Faculty, Roddy Dunlop QC, was sceptical of the Lord President’s claims.

He told Scottish Legal News that while the efficiency argument “makes sense for procedural hearings. It does not, with respect, hold good for substantive ones”.

“On the contrary, repeated IT difficulties and challenges of not being in the same room as the judge mean the longer hearings are less – not more – efficient,” he added.

As for the quality of justice, he said: “I can think of no reason why the quality of justice is improved by online hearings.” Nor did he think online hearings increased access to justice. “Online hearings are not more accessible. Everyone can enter the courtroom. Not everyone can get online in the way that is needed to conduct these cases efficiently,” he said.

He added: “Given that I’ve never heard anyone say remote hearings are better than in-person hearings, other than certain aspects; given that there are various downsides, if, as the Scottish Courts and Tribunals Service tell us, it’s not cheaper, then why would we want to go down that route? It doesn’t seem to me to make any sense.”

Lord Hope of Craighead

Crossbench peer Lord Hope of Craighead, a former Lord President and Deputy President of the Supreme Court, agreed with Mr Dunlop, saying remote hearings were “second best”.

He told SLN: “Based on my experience of remote hearings in arbitration proceedings and my work when serving on committees in the House of Lords, I share the Dean of Faculty’s concerns about the efficiency of remote hearings.

“I think that they are very much second best for anything that involves substantial discussion in debates before the presiding judge or the taking of evidence.”

He added: “I agree with the Lord President that we should make use of what we have learned from the new technology. For example, there may be cases where a hybrid procedure would be appropriate for the taking of formal evidence. But the benefits of conducting proceedings in person should not be underestimated in choosing what to do with what is available to us now by way of this technology.”

The plans are also at odds with those south of the border, as well as in Ireland, where bar and bench are keen to return to conducting court business in person.

Mr Dunlop said two Court of Appeal judges and a Supreme Court justice had told him they hoped to return to conducting business in person in their courts. And, in Ireland, the use of remote courts, even for motions, is opposed by much of the bar. Ms Justice Irvine, President of the High Court, said in an interview that physical trials would be the default position this term in lists including personal injuries, family law, commercial and cases involving complex legal submissions. She noted, however, that hybrid hearings would suit many cases.

Mr Dunlop also said he thought we should “cherry pick the best aspects of remote justice” without throwing away “all the benefits that we get in terms of collegiality; in terms of learning; in terms of well being; and in terms of the administration of justice that you get with in-person hearings”.

While online courts are apt for procedural hearings, he said that “even there, I’m aware that there are various practitioners in particular, at the junior bar who are concerned because that’s where they cut their teeth”. 

This year has seen the greatest intake of devils to the Faculty since 1999, with 28 newcomers competing for work in the midst of the pandemic.