COVID-19 has turned our day-to-day lives upside down, as we have all had to adapt to a ‘new normal’, and the world of litigation has been no different.

From virtual court hearings, to electronic intimation, we have witnessed a move away from some of the traditional practices that have characterised our Scottish court system but how will these changes impact Scottish litigation in the future?

Service and Intimation

Are the days of serving a court document via post or by personal service (by Messengers-at-Arms or Sheriff Officers) gone? The Coronavirus (Scotland) Act 2020 has, amongst other things, permitted service and intimation of court documents to be carried out electronically (generally via e-mail) – provided the party on whom the document is served has agreed to service by this means in advance. This allows for a much quicker and more cost-effective approach.

Key to this new method is accepting the use of electronic service. Read our blog on the important issues which should be considered.

Hearings

In April, the first virtual hearing took place in the Inner House of the Court of Session. In June, the first virtual proof took place with video evidence. Both mark huge milestones in our judicial system, though seeking permission for individual witnesses to give their evidence by video link had been an option for some time, particularly in the Commercial Court.

Witnesses can now give evidence via video conferencing platforms such as Webex, Microsoft Teams and Zoom. A secure and stable video link is important, particularly where issues of reliability and creditability arise. It is safe to say that hearings have been, and can be, conducted successfully in a virtual setting. But what is it like? My colleague, Jamie Reekie, recently commented on his experience appearing ‘virtually’.

These changes are welcomed by many. It allows great efficiency, avoiding charges for ‘travel’ or ‘court waiting’ time. Logistical issues with overseas witnesses can be eliminated. More importantly perhaps, our backs will be saved from lugging court documents to and from court. Although the use of electronic files had been growing in recent years, paper folders had never been dispensed with entirely, whereas it is becoming the norm for electronic files to be used exclusively in remote hearings. It is hoped that these efficiencies will be to the benefit of clients, with the costs of conducting a litigation being reduced.

Alternative Dispute Resolution

In March, the Scottish courts effectively closed their doors for business as a result of the COVID-19 pandemic. Ongoing court actions were paused. This led many to explore other methods of resolving disputes out with the courts.

Mediation, traditionally conducted with parties convening (physically) in a room to thrash out the issues in dispute, has also gone virtual. Great use of remote mediation, held over video conferencing software, has been made during the restrictions imposed as a result of COVID-19.

If a resolution is reached between parties in a remote mediation, an agreement can be concluded and executed within seconds using electronic signatures via online signing platforms such as DocuSign or Adobe Sign.

Remote mediation has been an effective method for quickly resolving disputes during lockdown. Going forward it may continue to be appealing where time or cost factors are an issue. Plus, for many, being able to avoid the confrontation of a face to face meeting at the mediation is an attraction.

A change in the way we litigate?

Have we seen the start of an overhaul to the Scottish court system? As we continue to battle through COVID-19, with reports of a potential second wave, the changes we have observed so far are likely to continue to evolve and develop. As my colleague Stephen Goldie commented recently, ‘we cannot, and should not, go back to what we were doing before’.

So, will these changes be the ‘new normal’ for Scottish litigation? Only time will tell…

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