A tale of two systems: COVID-19 and the courts

The ongoing coronavirus pandemic has affected all of us, in particular how we work. All but “essential” workplace offices are closed, and the vast majority of lawyers find themselves working from home. However, pandemic or not, the administration of justice must go on.

There are those who feel that justice in England, unlike in Scotland, has largely gone on “business as usual”. I am dual qualified and operate a split Scots/English law practice, and prior to lockdown, spent half my time in London. I have therefore been fascinated by the different approaches taken by HM Courts & Tribunals Service (HMCTS) and the Scottish Courts & Tribunals Service (SCTS) in facing the same challenges. Why has there been such a disparity? Is the English system, and its rules, more adaptable? Or has HMCTS simply been more reactive and responsive to practitioners’ needs?

As the Law Society of Scotland (LSS) Council member for England & Wales, I volunteered to use my detailed understanding of the two systems to produce a review to identify the real differences, looking at topics including court rules, service of documents, electronic filing, sheriff and county courts, remote hearings, and the day-to-day operation of the Court of Session and the High Court. I also spoke to numerous practitioners on both sides of the border. I’m grateful to everyone who took the time to give me their views.

Space does not permit me to reproduce all of my research here, but this article seeks to provide a high level overview of my findings.

Initial approaches

On 17 March, the Lord Chief Justice of England & Wales stated: “it is of vital importance that the administration of justice does not grind to a halt… Our immediate aim is to maintain a service to the public, ensure as many hearings in all jurisdictions can proceed and continue to deal with all urgent matters”.

In stark contrast, the Court of Session issued an email to civil court practitioners the following day, stating: “All proofs, proofs before answer and civil business involving witnesses will be discharged and will not be proceeding until the end of April 2020 when the position will be reviewed.” SCTS advised that it would only deal with “urgent” or “essential” court business, without clearly defining these terms.

Civil litigators in Scotland were horrified, and both the Faculty and LSS immediately entered into dialogue with SCTS. In an open letter, Vice Dean of Faculty Roddy Dunlop QC stated that SCTS’s “mothballing” of civil business was extremely concerning and urged it to review its approach.

The views I gathered from solicitors helped inform a detailed letter from LSS to SCTS. Many compared SCTS’s approach extremely unfavourably to that of HMCTS, and could not comprehend why there was such a marked difference.

How flexible?

The English Civil Procedure Rules (CPR) and Family Procedure Rules provide for “considerable flexibility”. A Remote Hearings Protocol has been implemented for the county court, High Court (including the Business and Property Courts), and Court of Appeal (Civil Division). This states that there will no adjournments or stays (the English sist) unless “absolutely necessary”. Judges have been encouraged to make as much use as possible of telephone and video hearings. Skype for Business has been installed on the laptops of the judiciary and HMCTS staff, and a cloud video platform is being used in some civil and family hearings. The courts have offered guidance for remote hearings, such as: submitting recordings in 30-minute segments, bandwith guidance, appropriate document sharing systems, and remote etiquette (e.g. using “mute” function). A telephone helpline can assist those having technical issues when joining remote hearings.

In fairness to SCTS, it took on board the profession’s concerns and collaborated with LSS and Faculty. It has clarified the scope of “urgent” or “essential” business, and assessed whether other business could be carried out remotely and what phased steps could be taken. On 17 and 29 April it issued welcome guidance about the restarting of civil business in the Court of Session and sheriff courts. Indeed on 21 April, Scottish legal history was made when Lord Carloway, Lord Menzies and Lord Brodie heard the Kezia Dugdale defamation appeal in a virtual court with remote links. Journalists were able to watch on a secure closed link.

Afterwards Lord Carloway commented: “The technology worked well from the court’s perspective and the hearing captured the ambience of a physical courtroom. The judiciary fully support the promotion of virtual cases where it is technologically possible and appropriate in the current situation.”

Similar Inner House hearings will take place until at least 10 May. SCTS said virtual courts could become a permanent feature.

The challenge faced by both jurisdictions is the principle of open justice. In England, Practice Direction 51Y confirms that remote hearings are capable of facilitating open justice and should, as far as possible, remain public. If a media representative is able to attend remotely, proceedings will remain “public”; in any event, private hearings will be recorded. A hearing is made public by projecting a screening of the remote video within the courtroom. It may also be live-streamed. As mentioned, Scotland provided a secure link for journalists to attend the virtual hearing.

Many hearings are of course already streamed: some Court of Appeal and all Supreme Court hearings. On 24 March, the Supreme Court conducted its first ever remote hearing which could be followed on social media accounts including Instagram (hashtag #VirtualCourt). It has also provided an online guided tour facility during the lockdown.

Electronic service?

A number of post offices are closed, postal delivery is increasingly delayed, the track and trace service is not fully operational, sheriff officers/process servers are limited in the work they can do, and social distancing measures mean it is not always possible to obtain a signature on delivery. Accordingly, many firms in both Scotland and England have announced that, due to office closures, until further notice they will not accept service by hand, post or fax, and all communications should be sent by email. This approach, whilst pragmatic, is not strictly in compliance with court rules in either Scotland or England & Wales.

In Scotland, documents can be served, in short, by personal service, by post or by a party’s solicitor accepting service on their behalf, though service of a summons or petition requires solicitors to meet face to face. None of these methods are ideal in present circumstances. There is still no court-sanctioned process we are aware of for service to be accepted electronically; parties can agree between themselves but we do not know what the court’s attitude will be when the COVID-19 situation is over. Although service is permitted by email in England & Wales, and is for some firms common practice, it requires the express consent of both parties (Barton v Wright Hassell LLP [2018] UKSC 12).

There are undeniable advantages of email service, including cost savings, speed, security (emails can be encrypted and password protected), and ease of evidencing. It is respectfully suggested that both jurisdictions should look at updating their rules of service to reflect modern practice.

Filing of documents

In Scotland, documents are normally filed by a court runner physically lodging the papers. One dual qualified practitioner commented to me that this system seems “archaic” in comparison to the English system.

The exception is the Court of Session Commercial Court (the rules of which, as I understand it, are loosely based on the CPR), where documents are routinely lodged by email direct to the commercial clerk. The court is considered more sophisticated in its uses of technology than other sections of the Court of Session. Indeed, technology is an important feature. The judges’ court diaries are available electronically, enabling the date and time of any subsequent hearing to be fixed immediately. Most documents required during an action can be emailed. Interlocutors, once signed, are emailed to the solicitors. Documents and legal authorities required during a hearing are expected to be lodged in electronic format.

Schedule 4 to the Coronavirus (Scotland) Act 2020 introduced new rules allowing the signing and lodging of most court and tribunal documents electronically. This will be in force until 10 May 2020 unless extended. However I can’t help but wonder why this can’t continue after lockdown? In England, the courts accept the e-filing of documents and this is routinely done.

Pragmatic approach

Courts in England have approached cases during COVID-19 in a pragmatic fashion: see in particular O’Driscoll v F.I.V.E. Bianchi SPA and Muncipio de Mariana v BHP Group plc [2020] EWHC 928 (TCC). In BHP, the court discerned that it would take significantly longer to prepare evidence by means of remote hearings and granted the extension sought. The judge identified the following principles in relation to adjournment and remote hearings:

• The continued administration of justice is important.
• Disputes can be resolved fairly, remotely, and there should be rigorous examination of this option.
• Courts may be prepared to hold hearings remotely in previously inconceivable circumstances.
• Decisions as to whether a fair resolution can be achieved are case specific.

On time extensions (considering Heineken v Anheuser-Busch [2020] EWHC 892 (Pat) and Practice Direction 51ZA.4), the judge identified these principles:

• Existing deadlines should be met, where possible.
• Legal professionals will be expected to make appropriate use of modern technology, and lawyers and experts to go further than in normal circumstances (putting up with inconveniences and using imaginative, innovative working methods).
• The court may be willing to accept evidence and other material which is less polished and focused.
• The court will avoid requiring compliance with deadlines which are unachievable, even with proper effort.
• It is recognised that things take longer via remote working.

Courts in England have made it clear that practitioners are expected to step up to dealing with the challenges imposed by COVID-19, not just in innovation/technological terms but also in terms of collaboration.

At the time of writing, I do not believe there are any reported decisions dealing with COVID-19 in Scotland, but I respectfully suggest the principles outlined above are eminently sensible and should therefore be highly persuasive.

Opportunity for progress

Scotland is no stranger to innovation; whether it’s the telephone or the television, Scots have changed lives around the world by being bold and innovative. Sadly we aren’t seeing much of this innovation in our court system. Practitioners have worked hard to promote Scotland as a forum for the effective resolution of disputes and a viable alternative to England. It is therefore essential for the future of Scottish litigation that the Scottish courts are fit for purpose and for the modern day. Whilst the pandemic presents an unprecedented challenge, it can also be viewed as an opportunity, for all jurisdictions, to invigorate their court systems and bring them into the modern day.