Consultation responses oppose hearings presumptions
General presumptions should not be applied in determining whether court hearings should take place virtually or in person, court users have stated in response to the recent consultation.
The Scottish Civil Justice Council has published the analysis of responses to its consultation on draft rules proposing how different categories of business should be dealt with in future, unless the court otherwise directed. It covers 82 responses received, almost all from individuals or organisations from the legal profession or the judiciary – which, the analysis report warns, means a "strong potential for bias".
Most respondents perceived virtual hearings "as providing a significantly lower standard of service in comparison to their experience of an in-person hearing", the report states. Shortcomings are said to include disadvantage for lay participants; reduced ability to use in-court advisers; difficulties with mobile devices and poor connectivity generally; and muting of participants on the one hand and difficulty taking instructions/risk of overhearing private conversations on the other, as well as various problems with witnesses. They also raised the effect on training and wellbeing of practitioners, and the differential impacts on people with protected characteristics under the Equality Act.
As regards the proposed presumptions, whether as respects Court of Session or sheriff court actions fewer than one in five supported their use – for example that only certain categories such as family cases should be heard in person. This was seen as a "one size fits all" approach and one that might also imply that some rights are viewed as more important than others. Concerns were also expressed over the wording of some of the tests.
Alternative approaches suggested included a general presumption in favour of in-person hearings for all substantive business, to be departed from at the court's discretion, on application by parties or on the court's own initiative; and a decision taken in each action at case management stage (the role of motion procedure attracted conflicting views). If presumptions are to be retained, various proposals have been made as to how they should be drawn.
Some respondents also suggested that telephone hearings should be phased out or withdrawn completely, though others expressed the view that there are still circumstances where they have a role.
There were also differing views over whether the court should have the final say in the type of hearing.
A decision from the Council on the outcome of the exercise is awaited.