Sarah Lilley

The impact of COVID-19 has resulted in us adapting many practices in our daily lives, both personally and professionally. The Scottish courts are no exception. As a busy family lawyer practising in Inverness and across the Highlands, I’ve been directly involved in the fast-paced changes that have occurred across sheriff courts, including many rural Highland courts, over the past six months.

Courtrooms at home

Social distancing has meant us legal professionals are working from home. Court hearings have taken place with lawyers addressing sheriffs from their spare bedrooms and dining rooms. Homemade ‘Do not disturb – court hearing in progress’ signs have been stuck to many a household door.

The primary method being used for hearings is teleconference – and some are taking place via video conference. Lawyers receive a call from the sheriff clerk and then the sheriff joins the call and essentially chairs the hearing.

What are the benefits?

I’ve been pleasantly surprised at the significant benefits ‘virtual’ hearings have delivered:

• Greater productivity. Travel and waiting times have been reduced to nil. Being based in Inverness and Dingwall, most of my cases are dealt with at Inverness Sheriff Court. However, I have a number of cases in rural and island courts such as Tain, Wick and Stornoway. The travel time can be significant and the associated costs can be high, especially if a flight is involved. I previously spent a long time, often several hours, at court waiting for cases to call and the ability to carry out any meaningful work was limited. Now, I can work right up to the moment a remote hearing starts.
• Reduced costs for clients. Less time spent waiting in courts and travelling to rural and island courts means lower costs are relayed to clients.
• Progress of child law cases. The virtual courts system has enabled civil justice to keep moving forward. This has been particularly important in matters relating to children, where any delays in progressing cases can be detrimental to a child’s welfare.
• More choice for clients. There is no longer any need for clients based out-with cities to hesitate in instructing lawyers from beyond their local area. Gone are the days when clients had to travel many miles from remote areas into Inverness to meet me – video calls are now second nature. More choice on legal representation is available to all, irrespective of their geography.
• A supportive format for domestic abuse victims. Where there are allegations of abuse made by one party about another, it can often be extremely difficult for them to come into direct contact with each other in a courtroom. Remote hearings have removed that concern by providing a natural distance between parties.

Any negatives?

• ‘In person’ is best in some circumstances. Some family law cases proceed to proof (trial) and in those situations it’s often best that the sheriff can see those giving evidence, either over video-conference or in the courtroom. Sheriffs have to take a view as to the quality of the evidence given in the witness box and will often comment on the credibility of a particular witness. This may be more difficult if the witness cannot be seen.
• Detachment from proceedings. Parties involved in an action have a right to be present in court when their case is being dealt with, and the same applies to hearings that take place ‘virtually’. However, the experience for a client in a virtual hearing is vastly different from the experience of a courtroom. Sitting next to their lawyer is impossible and being able to pass notes/whisper instructions and discuss matters as the hearing progresses is limited.
• Less opportunity for training and negotiation. Many years ago, as a trainee lawyer, it was the highlight of my week to attend the local sheriff court with my colleagues, watching and learning. These experiences were invaluable. While it is possible for trainees today to attend ‘virtual’ hearings, the experience of the physical courtroom is lost for them. There is also an impact on the important conversations that happen between lawyers outside the courtroom. I’ve spent many hours in the solicitors’ ‘agents’ room’ prior to cases calling, negotiating with fellow lawyers from across the Highlands. Cases have been finalised and the intricacies of child contact disputes ironed out, so that by the time the case calls before the sheriff the matter is largely, if not wholly, resolved. Again, opportunities for this kind of negotiation are lost in the virtual process.

Embracing the change

I applaud the sheriff clerks and sheriffs for the hard work they’ve put into making this new system work. It’s my hope that, moving forward, much of what has been put into practice since the start of the pandemic can remain in place. There are, of course, cases that benefit more from the physical presence of people in court, but equally, there are those that will reap the benefits of the new system too.

Sarah Lilley is a senior associate at Brodies