Andrew Stevenson

Andrew Stevenson, SLAS secretary, told Scottish Legal News that the pandemic had disrupted the civil court system “on a scale not seen since the Court of Session (Scotland) Act 1745 adjourned the court whilst Edinburgh was under Jacobite occupation”. 

“What is more significant, however, is a legacy that is likely to be permanent, namely that litigation will in many ways become another species of chambers work.”

Mr Stevenson acknowledged that a lot of court work has always been undertaken in chambers but said it was “always preparatory to and an adjunct to the key element of litigating”.

“Litigation is rapidly resembling commissary business insofar as that even now it can commonly be conducted from start to finish as a largely administrative exercise. In the main, civil actions can be undertaken without any of the parties or lawyers going anywhere near a court building, let alone meeting a sheriff or indeed each other,” he added.

The SCJC’s suggested rules will hollow out open courtroom work, removing “pretty well every civil hearing apart from proofs where there is a significant issue of credibility and debates and appeals where there is a matter of public importance or question of complexity”. 

Mr Stevenson said: “This will have a radical effect on our civil court buildings, restricting their activities drastically and emptying their courtrooms, corridors and bar common rooms of civil practitioners.”

He said the social dimension of court work was one of its attractive features and that “before the removal of family, commercial and personal injury cases from mainstream civil courts, bar common rooms were busy with litigation lawyers”. This in turn “gave rise to a vibrancy and feelings of community and collegiality”.

The changes would be especially detrimental for those entering the profession, the solicitor advocate warned.

“Younger solicitors and trainees were able to rub shoulders with and seek advice from more experienced colleagues. Personalities like the late Graham Wilson enlivened and brought much needed humour into the courtroom. It was easy to pick brains and run ideas past older and wiser lawyers. Court skills and techniques could be observed and emulated.”

He concluded: “This has all largely gone under Covid emergency measures, and it is hard to see how we are better for it. It is impossible for new litigators to learn court craft and etiquette if they rarely see anyone else on their feet and actually appearing. Making these changes permanent, as the SCJS proposes, is a mistake.”