Skip to content
Law Society of Scotland
Search
Find a Solicitor
Contact us
About us
Sign in
Search
Find a Solicitor
Contact us
About us
Sign in
  • For members

    • For members

    • CPD & Training

    • Membership and fees

    • Rules and guidance

    • Regulation and compliance

    • Journal

    • Business support

    • Career growth

    • Member benefits

    • Professional support

    • Lawscot Wellbeing

    • Lawscot Sustainability

  • News and events

    • News and events

    • Law Society news

    • Blogs & opinions

    • CPD & Training

    • Events

  • Qualifying and education

    • Qualifying and education

    • Qualifying as a Scottish solicitor

    • Career support and advice

    • Our work with schools

    • Lawscot Foundation

    • Funding your education

    • Social mobility

  • Research and policy

    • Research and policy

    • Research

    • Influencing the law and policy

    • Equality and diversity

    • Our international work

    • Legal Services Review

    • Meet the Policy team

  • For the public

    • For the public

    • What solicitors can do for you

    • Making a complaint

    • Client protection

    • Find a Solicitor

    • Frequently asked questions

    • Your Scottish solicitor

  • About us

    • About us

    • Contact us

    • Who we are

    • Our strategy, reports and plans

    • Help and advice

    • Our standards

    • Work with us

    • Our logo and branding

    • Equality and diversity

  1. Home
  2. For members
  3. Journal Archive
  4. Issues
  5. December 2021
  6. Opinion: Amanda Masson

Opinion: Amanda Masson

The consultation on the future of court hearings has been criticised for its emphasis on remote hearings, but should we not seek a more hybrid model as many solicitors now do with their work patterns?
13th December 2021 | Amanda Masson

The Scottish Civil Justice Council consultation on virtual and in-person court hearings has now closed. The consultation sought views on draft rules about the conduct of civil hearings in the Court of Session and sheriff courts. It is fair to say that the proposed rules have evoked strong responses.

There is no doubt that the way we conduct litigation has changed drastically since the onset of the pandemic. The initial sense of chaos has abated, and to a large extent we have become used to conducting civil court hearings remotely.

A way of conducting court business which emerged as a response to a public health need is going to be adapted as part of the evolution of our modern justice system, whether we like it or not. Even the most vocal naysayers acknowledge that some degree of remote participation is inevitable.

The consultation recognises the need to consider effective participation in the justice system, maintaining the gravitas of the court, availability of technology and public safety.

It seems that the majority of court practitioners would prefer to get back into court without further ado. The Faculty of Advocates’ response to the consultation is worth reading. It sets out cogently and in stark terms the reasons for the Faculty’s opposition to the proposed new rules.

The paper itself anticipates the potential concerns around access to justice, the need to safeguard against potential contempt of court, public and media access, and the need for “justice to be seen to be done”. Yet it sets out numerous reasons why remote hearings may serve a modern justice system well.

It is important to observe that the proposed new rules are consistent with the thrust of the Scottish Government’s digital strategy. The paper A Changing Nation: How Scotland Will Thrive in a Digital World is thought provoking and relevant. It highlights the opportunities created by online working. It explores ways of addressing the problem of digital exclusion, including provision of devices, training, investment in strengthening broadband connections, and potential funding for access to digital services via third sector organisations. The proposed new rules on remote working also anticipate the issue of digital exclusion, and provide potential solutions in the form of exemptions to remote hearings.

Perhaps the fundamental question is whether we lawyers really want to live in a virtual reality. Just as there are concerns around how remote hearings can properly ensure access to justice for members of the public, so too are there concerns about what remote hearings mean for members of the profession. A virtual world can be a lonely place. Junior members of the profession have fewer opportunities to observe and learn from more experienced colleagues and to build a rapport with the bench. Some junior colleagues may not have a separate space in which to work at home, with no physical or psychological boundaries between home and work. The collegiate culture in which our profession thrives is diminished. Chats about challenging cases can be few and far between. Many miss the supportive framework that going to court provided.

Arguably, we do need to broaden our horizons. The system of litigation we worked with prior to the outbreak of the pandemic was not perfect, by any means. Travel to and from court, and waiting time, is inefficient and costly for both solicitors and clients. Heavy footfall in public buildings also poses a public health risk.

The proposed new rules do not seek to abolish in-person civil court hearings altogether. Exemptions are explored. There are three possibilities: (1) in-person hearings; (2) hearings by electronic means; or (3) a hybrid of the two.

Many solicitors have opted for a hybrid model of working. The court system may come to work in a similar way. Perhaps we need to strive for the best of both worlds in the conduct of civil litigation, just as many of us have in our working practices. Some of the arguments for remote working, such as better work-life balance, may seem relatively trite, but fundamentally they strike at the heart of individual and collective wellbeing. Protection of the wellbeing of the profession can only be a positive thing.

The draft rules do contain exceptions which can be invoked where an in-person hearing would be more appropriate than a remote hearing. To my mind, the draft rules anticipate and deal with the concerns around access to justice. It is for us to adapt and find ways to be able to continue to offer support, supervision and training within the court arena just as we have had to do in our offices.

Change can be daunting, but with challenges come opportunities. As someone once put it: “The secret of change is to focus all of your energy not on fighting the old, but on building the new”.

The Author

Amanda Masson is a partner with Harper Macleod

Share this article
Add To Favorites
https://lawware.co.uk/

Regulars

  • People on the move: December 2021
  • Book reviews: December 2021
  • Reading for pleasure: December 2021

Perspectives

  • Opinion: Amanda Masson
  • President's column: December 2021
  • Editorial: Look after your people
  • Viewpoints: December 2021
  • Profile: Anne Follin

Features

  • Growth pains
  • In the victim's shoes
  • Time orders: has their time come?
  • Keeping it clean
  • Post-pandemic practice positives
  • Whether or not there’s a will, there’s a way

Briefings

  • Criminal court: OLRS – life means life
  • Corporate: Will a deal impact on national security?
  • Intellectual property: IP and AI – the latest
  • Agriculture: Securing successor crofting tenant status
  • Succession: Back of an envelope – testamentary intent?
  • Scottish Solicitors' Discipline Tribunal
  • Data protection: Google off the hook
  • Property: Beautifully presented tedium
  • In-house: Lawyers in uniform

In practice

  • Your Law Society of Scotland Council members
  • Legal services regulation reform – have your say
  • The Word of Gold: Whither goest thou?
  • Coaching: help in a fast changing world
  • The earlier the better
  • Family mediation accreditation: a view from the panel
  • The Eternal Optimist: Just to say thanks…
  • Appreciation: Albert Vincent Sheehan
  • Ask Ash: A broken work circle

Online exclusive

  • Executor disputes and the insolvency solution
  • COP26: unpacking the Glasgow climate pact
  • Passivhaus – the golden ticket to net zero?
  • The court, the IPO and the judge's discretion

In this issue

  • New Year, new start?
  • Made in Scotland

Recent Issues

Dec 2023
Nov 2023
Oct 2023
Sept 2023
Search the archive

Additional

Law Society of Scotland
Atria One, 144 Morrison Street
Edinburgh
EH3 8EX
If you’re looking for a solicitor, visit FindaSolicitor.scot
T: +44(0) 131 226 7411
E: lawscot@lawscot.org.uk
About us
  • Contact us
  • Who we are
  • Strategy reports plans
  • Help and advice
  • Our standards
  • Work with us
Useful links
  • Find a Solicitor
  • Sign in
  • CPD & Training
  • Rules and guidance
  • Website terms and conditions
Law Society of Scotland | © 2025
Made by Gecko Agency Limited