Scotland’s direction of travel remains towards digital civil justice: but practitioners continue to act as a brake

Last year, the Scottish Civil Justice Council (SCJC) launched a consultation on proposed new rules which would result in virtual hearings becoming the default approach of the Scottish courts for the majority of civil litigation. The SCJC is the body responsible for preparing draft rules of procedure for the civil courts in Scotland, for approval by the Court of Session. It also enjoys a wider role to advise and make recommendations on the civil justice system.

The background to the consultation and an overview of the proposals is set out in our earlier Law-Now (Pandemic prompts proposals to permanently shift civil justice in Scotland to virtual hearing model).

The SCJC has now published an analysis of the responses received. As anticipated, there was a high degree of interest in the consultation. There was also a high degree of consensus among respondents: the feedback on the proposed draft rules was, on balance, broadly negative.

The SCJC therefore decided at its latest meeting to take account of this feedback in the drafting instructions it will now issue for new rules and in the preparation of additional Scotland-wide guidance. It has been decided that this ‘mixed approach’ will allow for an opportunity to continue to learn and flexibly update guidance as experience grows. The modifications that will be made to the original draft rules have not, however, been set out.

Response to the consultation

The analysis of responses records significant opposition to the proposals (note also, however, that the analysis records that the vast majority of responses came from legal professionals and that “readers should note the strong potential for bias when professional responses dominate”).

Some general themes that emerge from the consultation responses include:

1. That the general default presumptions which the draft rules set out as the foundation for determining which hearings should be conducted remotely and which should be conducted in person were too blunt and struck the wrong balance. Some respondents argued that there should rather be a presumption in favour of in-person hearings for all substantive business. Others suggested a flexible case-by-case approach would be more appropriate;
2. Some of the tests that were set out in the rules were criticised as confusing, unworkable and/or highly subjective;
3. There was a concern that the draft rules gave little consideration to court users’ own preferences as to how the hearings in their cases should be conducted, with some respondents suggesting that adding provision to the court rules to facilitate early discussion between the parties and the court of the appropriate mode of hearing may be a better approach than the application of default presumptions based on hearing type;
4. Some respondents questioned whether there was an evidence base to support the proposed near-wholesale shift to a remote model at this time, with a number of respondents setting out concerns based on their own experience of virtual hearings. Problems reported included:
   1. Disadvantages parties may experience due to lack of “equality of arms” from a technology perspective
   2. Poor internet connectivity and other technical problems causing disruption to hearings; and
   3. Practical difficulties experienced, such as difficulties with the presentation and assessment of witness evidence and the ability to take client instructions and communicate privately with counsel during hearings.

Next steps

Notably, the SCJC does not appear to be persuaded by the feedback received or to have given up on its intention to take civil litigation down the digital path. The discussion at its latest meeting noted the “direction of travel towards digital” but that “strongly polarised views … continue to act as a brake on what might otherwise be thought desirable”. The focus therefore appears to be on how to release that brake and at what pace to do so.

As to next steps, four options were discussed: (1) Withdraw the current approach to rules, (2) Seek empirical evidence, (3) Instruct revised practice notes and guidance, and (4) Instruct a different approach to rules. The SCJC rejected options (1) and (2), deciding to move forward with a combination of options (3) and (4). New drafting instructions will now be issued.

The suggested ‘mixed approach’ should include a gradualist “opportunity to learn and gain experience as working practices evolve” but also “the flexibility to update guidance more rapidly than is possible through amendment of the rules of court”. The minutes also note that a forum will be established to monitor the changes and initiate more regular improvements.

Having rejected the option of “withdrawing the current approach” (option (1)) it appears likely the SCJC will endeavour to maintain some aspects of its original approach. The question now is what approach the new rules and guidance will take, and which aspects of the feedback received these will reflect.