Proposals on remote hearings put forward by the Scottish Civil Justice Council (“SCJC”) would have a negative impact on access to justice, the quality of justice and inequality, the Faculty of Advocates has claimed.
Under draft rules for the conduct of court hearings after the COVID-19 emergency provisions expire, issued for consultation, remote hearings would become the default position except in most family actions, and ordinary proofs. All procedural hearings, judicial review proceedings and commercial actions would take place remotely, as would legal debates and all appeals unless raising a point of law of general public importance or particular difficulty.
Faculty believes the proposed rules strike the wrong balance. “We are particularly concerned about and strongly oppose the proposed adoption of a default setting for contentious and substantive hearings in the vast majority of civil cases in Scotland”, said Dean of Faculty Roddy Dunlop QC.
“There is little clear evidence, in our view, that suggests that litigants, the judiciary, counsel, solicitors or the general public desire a civil justice system which would operate in the way proposed by the draft rules.”
Faculty considers that while it is important to seek to retain, where appropriate, the beneficial elements of the way in which the civil courts have been forced to work during the pandemic, it is equally important to recognise that there are “a number of inefficiencies and inequalities that arise out of the use of virtual hearings”.
It would support a proposal to introduce a general default setting of virtual hearings for procedural business, supplemented by the ability of parties to apply for an in-person hearing, to be granted by the court if considered appropriate in the interests of justice.
“It is essential that the default position for contentious and substantive business should be in-person and in a courtroom”, the response states. “Parties should however enjoy the right to apply for a virtual hearing in whole or in part which the court can grant if considered appropriate in the interests of justice.”
Faculty's response includes its own set of draft rules, which it believes strike a better balance between retaining the benefits of the new way of working and the quality and integrity of the system which existed before.
The deadline for responses to the consultation has been extended to this coming Friday, 15 November.