Simon Dempsey

Our client was injured in a road traffic accident and raised an action against the defender, whom he held responsible. Issues of liability and quantum were aired at proof. The hearing was conducted via WebEx, which is already used by the Court of Session for civil proofs.

Both the pursuer and defender are elderly gentlemen and, by their own admission, neither are tech-savvy which presented challenges before the proof began.

Our client was concerned about dealing with unexpected technological issues such as wifi problems, however the court made time to run test sessions with all witnesses and agents in advance of the hearing to iron out any audio-visual issues. It was also my duty to ensure all witnesses had downloaded WebEx and that all were well prepared on the process.

A joint core bundle of productions consisting of agreed photographs and maps of the locus was prepared prior to proof. The core bundle was sent out to all of the witnesses at least four working days before the hearing. Each witness was instructed not to open the bundle before being invited to do so during examination. All productions were then returned once the hearing was over.

Liability witnesses were only sent the productions that related to the question of liability, but the pursuer also received the medical reports. The court was content with this and indicated this approach might be encouraged in future.

While we were free to conduct the hearing from home, I chose to use our office boardroom. This ensured there were no interruptions or privacy concerns and the IT team were on immediate hand should things go awry. This is personal preference – it’s perfectly possible to do this from home. However, I also found the added benefit of using the office (while still adhering to social distancing) was that it helped me get into the ‘courtroom mindset’.

The use of tech meant there were one or two issues with feedback or delayed reverberation which meant cross-examination could not flow as smoothly as it ordinarily would in person.

Upon request, the clerk would give either agent the “presenter” function which allowed them to share their screen with all other participants. As the agent who held the “presenter” function, it could be somewhat challenging to elicit evidence from witnesses as to the precise positioning on the maps and photographs.

Although it did not happen in this proof, I wondered if it would be helpful if witnesses were also given the capability to use their cursor to refer to the productions with more precision - arguably, this might even help the court more than if the witness were physically pointing at photographs in court. Nevertheless, the “presenter” function was particularly helpful when referring to authorities during submissions.

In the “comfort” of a courtroom, it is easier to notice when the sheriff wishes to ask questions, but in the digital proof I found it necessary to keep a firm eye on the Sheriff’s ‘window’ in case he makes a gesture that suggests he wishes to raise a point.

A real courtroom can be daunting, but I observed that witnesses are likely to be more at ease when giving evidence via webcam from the comfort of their home. This is of course a double-edged sword: while your witnesses may be more at ease, it also presents challenges in testing the credibility of a defender’s witness.

While it was not an issue in this case, concerns have also been raised about cases where two witnesses reside in the same house and cannot be separated in the way that they normally would.

In this case, the defender wished to be present during the examination of the pursuer and pursuer’s witness. He did so covertly, as he did not appear on the screen, so the pursuer and witnesses gave evidence without the defender’s physical presence in the ‘room’. In contentious disputes, the physical presence of a defender in the court room could have an impact on how a witness delivers their evidence.

Having a defender relegated to ‘attendee’ status goes some way to avoid such issues, and hopefully enables the witnesses to give their evidence more freely. However, in most cases, a defender is unlikely to be present to hear the evidence from the witnesses, due to the inevitable arguments about the weight which can then be attached to the defender’s evidence.

In conclusion, I felt that ASPIC’s first remote proof largely went off without a hitch. As we have seen already in other courts, the appropriateness of remote hearings varies on a case-by-case basis.

The suitability of remote hearings in cases where there is tangible evidence, such as work equipment, is also subject to debate. This was not an issue in this particular case, but one can anticipate problems in such circumstances.

For proof diets proceeding purely on quantum, remote hearings are a viable alternative. While the pursuer’s credibility and reliability still must be assessed, there are other elements to such proofs which would be well-served by this kind of technology. In this particular case, while quantum was in dispute, the medical reports were agreed, meaning that the medical experts did not need to provide oral evidence. Since skilled witnesses’ time is a valuable commodity, being able to provide evidence from home or from their place of work would certainly be more efficient.

Purely from a progressive perspective, the use of video conferencing technology is likely to become more common. It is important Scottish courts adapt and respond appropriately. If the courts move towards increased reliance on technology, I think most people in the profession would agree that it is primarily a good thing. However, it is important to bear in mind this was a fairly straightforward dispute on liability. There will be far more complex cases in which the use of this kind of technology would not be without its pitfalls. There is a balancing act to be struck between efficient use of parties’ time, assisting the court by leading evidence in an effective manner, and, of course, public health.

Simon Dempsey is a solicitor at Digby Brown Solicitors