How to balance the advantages of remote court hearings with those of traditional courtroom advocacy has been explored at a conference involving leading figures from across the Scottish legal profession, and further afield.
Organised by Scottish Courts & Tribunals Service, the theme of the day long event was the future of civil justice in Scotland after the COVID-19 pandemic – an episode that saw the courts increasingly adopt remote hearings as the means to keep the wheels of justice moving.
Last week both the Faculty of Advocates, in a statement with the other UK and Irish bars, and a survey of solicitors reported by the Law Society of Scotland, came out in favour of restoring in-person hearings at least at important stages of a case or for complex matters.
More than 200 attendees at the conference considered papers from the profession reporting on the experience of remote hearings, and heard judges, advocates and solicitors discuss which aspects of civil procedure were best suited to being dealt with without requiring physical presence in court.
There was broad agreement that procedural hearings were better suited to being dealt with online than evidential or other hearings crucial to the outcome of a case – though a family judge observed that procedural hearings can also sometimes be decisive in family cases. But it was also accepted that weight should be given to parties' preferences regarding evidential hearings, and the judges who contributed maintained that the type of hearing made little difference in being able to assess a witness's credibility.
Some judges were concerned not to lose the atmosphere of the court as concentrating parties' minds on the significance of their litigation; and some solicitor and advocate contributors stressed the value of informal exchanges to discuss cases around the time of a hearing. Others expressed concerns for both lawyers' and judges' wellbeing through having to conduct cases entirely remotely, and missing the personal interaction that is part of the human condition.
Opening the conference, the Lord President, Lord Carloway said it did not have a particular object but could be a “focal point” for beginning to consider which of the new processes could be retained or improved, and which previous practices restored, especially in relation to in-person hearings. All contributions would be listened to by those who would have to take the decisions.
An undertaking was given later from SCTS that full consultation would be undertaken ahead of any rule changes.
Drawing the proceedings to a close, Lady Dorrian, the Lord Justice Clerk, observed: “They say you can't have the best of both worlds, but that is no reason not to try.”
A report of the conference will be produced, and the event will also be covered in the June issue of the Journal.