Draft rules for when court hearings should take place remotely or in person, for the longer term following the end of the COVID-19 emergency provisions, have been issued for consultation by the Scottish Civil Justice Council ("SCJC").
Debate has continued in the profession over the extent to which remote hearings should continue to be used, with many court practitioners seeking a return to in-person hearings for other than procedural matters. However pressure on court capacity is likely to continue because of the backlog of criminal business, which is expected to take several years to clear.
Under the proposals, remote hearings would become the default position except in most family actions, and ordinary proofs. Legal debates on the procedure roll, and all appeals, would take place remotely unless raising a point of law of general public importance or particular difficulty. Remote hearings would apply to all procedural hearings, judicial review proceedings, and commercial actions including proofs.
Applications for a hearing other than the default position would be granted "only if [the court] is of the opinion that... it would not (a) prejudice the fairness of the proceedings; or (b) otherwise be contrary to the interests of justice".
With the emergency legislation now kept in force until 31 March 2022, the SCJC is prioritising work on the rules that will apply after that date. It takes the view that there is a need to consider how beneficial elements of the current system of remote hearings can be incorporated within existing court rules. The draft rules now being consulted on would apply to hearings in the Court of Session and in ordinary cause actions in the sheriff court.
In addition to setting out the default position for different types of civil hearings, the draft rules provide for the circumstances in which the default position can be overridden by the court (either on application of parties or of the court's own accord); and the process for making an application for attendance at a hearing in a manner other than the default position.
The SCJC said that responses to the consultation would inform it on "how best it can provide rules frameworks which facilitate and support new ways of working in the courts post-COVID and how longer term system benefits can be realised".
Numerous members of Faculty have already tweeted opposition to the proposals, including Dean of Faculty Roddy Dunlop QC, who complained of the "many, many problems of keeping litigation mainly online forever", adding: 'The surveys say most judges & lawyers agree: so why force this upon an unwilling and unwelcoming profession?"
The consultation documents are available at this link. The consultation closes on 18 October 2021.