Dismay at the lack of progress in enabling civil court business to be conducted remotely during the lockdown period has been voiced by the Faculty of Advocates.
In a letter to the Scottish Courts & Tribunals Service (SCTS) and Humza Yousaf, Cabinet Secretary for Justice, Vice Dean of Faculty Roddy Dunlop QC warns that the prevailing "mothballing" approach is putting the financial futures of firms of solicitors and members of Faculty "at real risk".
Mr Dunlop said it had been pleasing to learn in recent days that Inner House business in the Court of Session was to recommence, remotely, from 21 April. As is happening in England, hearings in Scotland could be accommodated within Government coronavirus guidance by the use of video and other technology.
“However," he continued, "I am dismayed at the suggestion that nothing else will happen during lockdown, so far as non-urgent business is concerned. I urge a rethink."
Contrasting the position south of the border, where the Lord Chief Justice has confirmed that arrangements are in place to allow as many hearings as possible to take place remotely, Mr Dunlop pointed out: "In Scotland, the stated position of SCTS is that all non-urgent business is stalled. In England & Wales, the express position is quite to the contrary: namely that they are putting in place arrangements to use telephone, video and other technology to continue as many hearings as possible remotely.
“Many parties to litigation have a choice of forum… If every Scots case is mothballed whilst the English act flexibly, future litigants are unlikely to look favourably north of the border" – despite recent efforts to promote Scotland as a forum for resolving disputes.
"I do not suggest for a second that any member of court staff should be put at risk, [but]… there are readily available solutions for at least the resumption of procedural business, and the Faculty will do anything it can to facilitate this… the sheriff court has conducted procedural hearings by way of telephone conferencing for years."
In a new English appeal decision, Chancellor Sir Geoffrey Vos has described how the case was conducted entirely remotely by the use of Skype for Business, "in an attempt to demonstrate the flexibility of the arrangements that can be made, with the cooperation of the parties and their lawyers, to continue to deliver fair, open and transparent justice in a period of national difficulty".