Beyond COVID: what next for the courts?

There is no shortage of opinion from practitioners and others regarding the brave new world of pandemic procedures in civil cases. Stories of experiences of conducting remote proofs and lodging productions electronically are fascinating to an old timer like me, but, dare I say, not necessarily the perfect blueprint for the future. 

It is difficult to know what lessons can sensibly be learned from recent developments forced upon both eager and reluctant COVID era litigators, when is the right time to start learning those lessons, and how best to apply them to the future. On the other hand, there is a very good argument that this is the jolt we have needed to cast off the shackles on court reform and press ahead with new ways of doing many things.

The law does not like change, but since March 2020 our civil justice system has responded quickly to the problems caused by COVID. At every level, the courts have of necessity altered their own practices. It is interesting to reflect that these responses have not required the alteration, deletion, or insertion of one new rule in our existing court rules. At one extreme, some developments have caused us to question why we ever did things the old way, while at the other extreme many lawyers cannot wait to return to the old familiar procedures and processes. 

It may not be widely known, but proposals to introduce new rules for ordinary actions with an emphasis on judicial case management have been under consideration for quite some time. A Scottish Civil Justice Council report in May 2017 recommended consultation on a wide range of possibilities for future court procedures. Nothing seems to have happened since then and, even allowing for the effect of the pandemic, that is a rather discouraging delay. That may be understandable in some respects, but it can be contrasted with the Civil Justice Council in England, which has already published a number of reports in the past 12 months reviewing the way in which their litigations are being conducted now and debating the future. 

So, to pass the time in lockdown, and to stimulate some constructive discussion, I thought it would be interesting to sketch out a procedural design for a court system (primarily for ordinary actions in the sheriff court) which combines the merits of our existing procedures, adapts the successful modernised procedures and practices in commercial actions and PI actions, and takes into account the positive benefits of some of the measures introduced over this past year. It would be a shame if we did not use this experience to accelerate the modernisation of our courts and actually introduce the reforms that the 2014 Act was designed to facilitate.

The conduct of remote hearings of all kinds, and the implications for the advocacy skills required in a new approach to procedure, are topics in their own right, and if holidays don't intervene I will deal with these separately between vaccines.

Civil ordinary actions

Raising an action

Court processes should all be electronic from now on. Any party who is unable or unwilling to comply with this requirement will have to seek approval from the court. The court itself may assist such a party in certain circumstances.

Pursuers would lodge their writ electronically with the court.

The court would issue an electronic warrant. 

Writs requesting interim orders or requiring special warrants would have to be lodged in hard copy along with any supporting documents.

Service of the writ would take place formally, by hard copy, and in the normal way by post or by sheriff officer.

There would be a two week period of notice. Within two weeks the defender would have to lodge electronically and intimate a notice of intention to defend.

Defences would be due automatically within two weeks of the expiry of the period of notice. The defences would be lodged and intimated electronically. Skeleton defences would be penalised. 

Initial case management

Once the defences had been lodged, the case would be allocated to a nominated sheriff who would be responsible for the management of the case until its conclusion. In certain circumstances, where the nominated sheriff was unavailable to deal with individual hearings in the case, an alternative sheriff would be permitted.

The nominated sheriff would assign a case management hearing (“CMH”), which would be within four weeks of the expiry of the period of notice. It would be open to the sheriff to issue directions to the parties in advance of this. 

Prior to the (first) CMH the parties would lodge and exchange a proforma form, which would contain a range of information. That information would include:

• addressing any directions/queries raised by the sheriff;
• identifying the issues (fact and law) which arose in the case;
• specifying the witnesses who would be giving evidence in the case;
• listing the productions which would be required in the case;
• intimating what disclosure of documents was to be sought; and 
• advising the sheriff what further procedure both parties considered would be appropriate in the case.

The sheriff would consider these forms in advance and decide whether they could make an order for further procedure on the basis of the information supplied. If not, the court would confirm the CMH would proceed by conference call or Webex (or whatever other electronic platform the court might require). 

Progressing the case

The sheriff's decision on administrative or procedural matters at any case management hearing (a case management order (“CMO”)?) would not be open to challenge.

Parties could adjust their pleadings at any time. Late adjustment (as defined) without good reason might not be permitted, and in any event would be penalised in expenses.

It would be open to parties to apply for an alteration in the CMO on the basis of new circumstances not known at the time of the original CMO, for example new evidence of significance, or developments in the pleadings which were not anticipated.

It would be open to the sheriff of their own volition to contact parties and arrange a procedural hearing in the action for any reason the sheriff considered appropriate. 

All hearings which could be regarded as administrative or procedural (as defined) would take place by telephone conference call or videolink, unless the parties requested and justified a personal hearing. 

In any case where a party was seeking decree or where the court was being asked to make an order of substantial significance to the outcome of the case, parties could insist on a personal hearing.

Any motions by any parties would be lodged by email. In the first instance the party would intimate the motion by email to the opponent. If the motion was opposed, the opposing party would require to give notice with full reasons. The parties would then exchange full written submissions (with authorities and arguments) in support of their respective positions. The sheriff would consider whether it was appropriate to grant the motion on the basis of the written submissions or whether it would be necessary to fix a personal hearing.

Pre-proof and proof stages

The sheriff would be responsible for the expeditious progress of the action. It shall be assumed that this would mean the fixing of a proof (which term shall include a proof before answer) as early as possible. Parties would have to justify any continuation of the CMH after the first such hearing.

Where the court allowed a debate (this having been justified at a CMH on traditional Ordinary Cause Rules grounds), the debate would proceed by detailed written submissions with parties having an option to give time limited oral argument in addition. 

Oral proofs in person would be the default position, but not allowed automatically. The CMH allowing a proof would provide for the form of proof and the method of taking evidence. Parties would be expected/ordered to lodge written statements (affidavits) of their own witnesses in advance of the proof. 

There would be a pre-proof hearing three weeks before any proof. The parties would have to supply the sheriff with detailed information in a proforma regarding the issues outstanding, the witnesses required and how their evidence was to be presented (actually or virtually), and the productions which would be required in the case. Documentary productions would be lodged electronically only, and parties would be expected to have an agreed bundle of productions as well as any individual productions for each side. The sheriff would consider the papers produced in relation to the pre-proof hearing and would then issue a detailed order to the parties regarding the conduct of proof. 

Conduct of remote proofs would require detailed regulation and/or guidance, and I will consider that issue in a separate article. Similarly, the impact of these changes on advocacy skills, both written and oral, demands separate consideration and it is inevitable that rules and/or guidance on some of those skills will be necessary to encourage practitioners to act appropriately when preparing and presenting online hearings.

At the end of any proof, the parties would be expected to lodge written submissions in support of their case/defence. The written submissions would be required within one week of the conclusion of the proof, regardless of its length.

Parties would be encouraged to adopt procedures which reduce the amount of “in court” time for submissions and oral argument. Where a party insisted unnecessarily, failed to meet deadlines etc, they would forfeit their expenses thus occasioned and be liable for their opponent's expenses. 

Appeals 

By their nature, appeals lend themselves to written advocacy and remote hearings. In-person appeals before a three judge appeal court would be the exception.

All documents would be submitted electronically.

The procedure prior to the hearing of the appeal would all be done by telephone conference call or video.

Any appeals would be dealt with by written submissions.

On cause shown, or if the court required it, parties would be allowed a hearing “in person” and a specified maximum time to expand on their written submissions. 

In this connection, and while not necessarily endorsing the practice, I found my visit to the YouTube channel of the Texas Supreme Court a fascinating experience. In that court, appeals seem to be heard remotely, with each party allowed 20 minutes for oral submissions, including rebuttals. The time limit is enforced ruthlessly with, just to make it interesting, a digital stopwatch prominently displayed on screen which changes colour as the time rapidly runs out. The hearings are preceded by the submission of detailed written legal arguments, and the oral hearing compels the lawyers to go straight for the “best points” in record time. What is not to like?