Civil court hearings: seeking common ground

The conversion of civil court business during the coronavirus pandemic from in-person hearings to remotely held court appearances has, barring some early teething problems, been a resounding success. Most civil hearings are now conducted by telephone conference or video link, and the increased flexibility this gives to practitioners has led to some calls for this practice to continue post-pandemic. However, for solicitors who conduct cases across Scotland (rather than simply their local sheriff court), the fact that the sheriff courts across the country have vastly divergent practices is cause for concern, especially for practitioners in bulk litigation firms.

When civil courts began to resume, all the sheriff courts started by conducting procedural hearings by telephone conference.

While there are some issues with parties talking over each other and the inability to take visual cues from the sheriff, these telephone conferences have the advantage of giving parties a set time slot for their case and a swift way to deal with procedural matters. Some courts, such as Glasgow Sheriff Court and Paisley Sheriff Court, still conduct most of their hearings by telephone conference. A procedural matter is assigned a 10-minute slot and the cases are spaced 15 minutes apart. These often run late, but the delay is to be expected and is usually not significant.

As the pandemic continued, many of the courts switched to using Webex, a videoconferencing platform. Edinburgh Sheriff Court now runs weekly ordinary cause and simple procedure courts by Webex. Hamilton and Airdrie run ordinary cause courts by Webex but continue to use telephone conferences for simple procedure matters.

Webex: some downsides

While the use of Webex is an effective tool which simplifies matters for the court and emulates an in-person court, there are many administrative disadvantages to practitioners. Frequently, the link to the video call is not sent out to certain parties, and parties must chase the court for the login details. If the court cannot be contacted, the case will be missed entirely. Many sheriffs are aware of this issue and merely continue the case if a party does not appear, but others have dismissed cases for a party’s failure to attend the hearing. A solution to this problem would be to have a password-protected link to the video call placed on the court’s website, with the password changing every week. If a solicitor did not receive the password, they would be able to obtain this from another solicitor or by calling the court.

Another disadvantage of the Webex platform is that practitioners must dial in to the call at 10am and wait through the other cases on the rolls, paying attention for when their case is called. This can take up a lot of valuable time. While this is similar to how in-person hearings were conducted, remote hearings provide an opportunity for flexibility which should not be squandered. For litigators with a significant caseload, it is common to have multiple cases calling for procedural matters at the same time, in different courts. As such, it is sometimes necessary to instruct a separate law firm to enter an appearance on an agency basis. Unfortunately, some of the law firms that previously carried out agency work are unable to do so when the case is conducted over Webex. It is not economical for them to sit through many other cases for a single agency fee and they are often only able to do so if they are instructed for multiple cases.

A place for writing

Aberdeen Sheriff Court in particular has taken a slightly different tack. While telephone conferences are used for procedural hearings, Aberdeen has focused more on written submissions. For procedural matters which don’t require lengthy submissions, written submissions are a quick and easy way to determine the matter. Sensibly, the court also allots time for a hearing, which may not be necessary, in case the sheriff is unable to decide on written submissions only. It is normal for the parties to receive an email from the court in the days running up to the hearing, detailing whether the sheriff has decided the matter on the written submissions, or believes that oral submissions should proceed at the hearing. This approach has been the most convenient for practitioners and minimises court time and expense.

The best way to conduct the remote courts would likely use a mixture of all three measures. Written submissions should be utilised for procedural matters, with time allocated for a telephone conference if the court requires oral submissions. Webex should be used for hearings which require lengthy submissions, such as opposed motions and expenses hearings, where the ability to take visual cues from the sheriff is an important consideration.