Roddy Dunlop QC

Roddy Dunlop QC, Vice-Dean of the Faculty of Advocates, said that – as is happening in England – hearings in Scotland could be accommodated within government coronavirus guidance by the use of video and other technology.

In a letter to the Scottish Courts and Tribunals Service (SCTS) and Justice Secretary Humza Yousaf, Mr Dunlop said it had been pleasing to learn in recent days that Inner House business in the Court of Session was to recommence, remotely, from 21 April.

“However, I am dismayed at the suggestion that nothing else will happen during lockdown, so far as non-urgent business is concerned. I urge a rethink. The prevailing ‘mothballing’ approach is putting the financial futures of firms of solicitors and members of Faculty at real risk,” he added.

Mr Dunlop, who understands he has wide support from the solicitors’ branch of the profession, pointed out different approaches north and south of the border.

“In Scotland, the stated position of SCTS is that all non-urgent business is stalled. In England and Wales, the express position is quite to the contrary: namely that they are putting in place arrangements to use telephone, video and other technology to continue as many hearings as possible remotely.

“Many parties to litigation have a choice of forum…If every Scots case is mothballed whilst the English act flexibly, future litigants are unlikely to look favourably north of the Border.

“I do not suggest for a second that any member of court staff should be put at risk (but)…there are readily available solutions for at least the resumption of procedural business, and the Faculty will do anything it can to facilitate this…the Sheriff Court has conducted procedural hearings by way of telephone conferencing for years.”

Lawyers expressed their dismay on social media too.

Advocate Timothy Young cited a Court of Appeal judgment in which Sir Geoffrey Vos, Chancellor of the High Court, praised parties for their use of technology to participate in the appeal remotely, in which some 19 individuals were signed into a Skype conference at any one time.

Mr Young tweeted that the “Scottish legal system has a rich history, first class lawyers, and excellent institutions. But, IMO, right now - we compare so badly to the English legal system in response to the current crisis”.

Rosie Walker, head of litigation at Gilson Gray, said even if there are difficulties, “this should not lead to all procedural timetables being suspended”.

She added: “The result is that cases can’t progress through their early stages and so settlement or resolution is further delayed.”

In England, the Solicitors Disciplinary Tribunal has decided to hear the Solicitors Regulation Authority’s case against Baker McKenzie and a former partner remotely.

Even though the tribunal is closed due to the pandemic, the SDT has already held a virtual case managment hearing.