A law industry body is calling for more civil hearings to take place in person, arguing proposed changes for a permanent increase in virtual hearings are “premature”.
The majority of civil hearings in Scotland are taking place through phone or video conference to help clear the backlog of criminal cases caused by the Covid-19 pandemic.
The Scottish Civil Justice Council (SCJC) has consulted on proposed changes to rules governing attendance at civil court hearings.
The proposals involve increased use of virtual hearings, including for all commercial hearings, including proofs, and many appeals.
The Law Society of Scotland, which represents more than 12,000 solicitors north of the border, said in a statement the proposed changes are “premature” and “without a solid evidence base”.
The industry body wants a year-long pilot scheme to be introduced to enable a limited number of proofs, evidential hearings and appeals to be heard in person.
Iain Nicol, the society’s Civil Justice Committee convener, said: “We recognise that the courts should not necessarily revert to how they operated pre-Covid.
“Virtual hearings have worked well for procedural business and should remain the default position going forward.
“These rules however, take a blanket approach to a nuanced situation and have been proposed in response to a transitional phase.
“The Scottish Government consultation on Covid Recovery recognises that it is too early to make permanent changes and instead posits an extension to emergency legislation.
“We are, therefore, at a loss to understand why a similar approach would not be taken here.”
He added: “As we begin to emerge from what has been an incredibly challenging time for the justice sector and society as a whole, it is important that we take time to identify which measures have long-term value and those which, although expedient in a time of crisis, should be now be rejected in favour of high quality human processes.
“The pilot we suggest would prove invaluable and informative in making those decisions.”
He highlighted the society’s survey of Scottish solicitors carried out in May 2021, 91% of the 448 respondents said they thought civil procedural hearings worked particularly well remotely, but only 5% thought proofs worked well and 3% thought evidential hearings worked well remotely.
Mr Nicol said: “Furthermore, the rules do not take into account the views of the profession, who have expressed in no uncertain terms, the desire to return to live hearings when it is safe to do so.”
The SCJC consultation document states: “There is an ongoing public debate about the merits of remote hearings. For some court users the attendance at hearings by electronic means has been perceived as delivering significant benefits in terms of reduced travel time and inconvenience, as well as more efficient hearings.
“For other court users it has raised concerns over how best to facilitate effective participation, maintain the gravitas of the court and respond to the availability of technology.”
The consultation closed on November 15 and a report on responses is due to be prepared for consideration by the SCJC.
In response to the consultation, the Scottish Courts and Tribunals Service backed the planned changes, adding: “The expanded use of virtual hearings over the last 20 months has proved the concept that these can be made to work efficiently and effectively in more situations, whilst preserving the three fundamental elements of the justice system of of access to justice, fairness and transparency.”