Law Society survey finds qualified support for remote civil court hearings

A survey of Scottish solicitors has found that more than three-quarters think aspects of remote civil court work should continue after the pandemic.

Findings from the Law Society of Scotland survey of 448 civil court practitioners have indicated that most think remote hearings work well for procedural and uncontentious matters. However, far fewer of the survey respondents thought that more complex hearings should be carried out remotely.

A sizeable majority of survey respondents, at 78.5 per cent, said they would like remote court hearings to continue after the pandemic. Of those, 91 per cent said they thought procedural hearings worked particularly well, and almost all, at 99 per cent, saying they would like to see them continue remotely.

However only five per cent thought proofs, a civil court hearing which is determined by a judge or sheriff, and three per cent thought evidential hearings, such as a tribunal, worked well remotely. A quarter of respondents thought first instance debates worked well.

Around one third of respondents, 32 per cent, stated that they had no practical difficulties when particpating in remote hearings, however 45 per cent found it challenging to obtain clients’ instructions during remote proceedings. 41 per cent of respondents thought that their clients struggled to either understand or participate and almost a quarter of solicitors, at 23 per cent, found it more difficult to articulate their position.

Benefits cited by the respondents included time savings in travel and court waiting times. The vast majority of respondents at 91 per cent indicating that it saved travel time, 75 per cent that it saved waiting time, 69 per cent that it reduced costs and over half, at 55 per cent, said it was more efficient than being personally present in court.

However concerns were raised in relation to the difficulties in assessing witness credibility and reliability remotely and respondents also said the lack of opportunity for proper face-to-face interaction with other agents, witnesses, and with sheriffs and judges, hindered effective participation. There were also issues with clients feeling disengaged from proceedings and problems with technology, including access to suitable devices and connectivity issues. Solicitors also said the loss of formality of court proceedings had an impact when conducted remotely,

There were also concerns regarding consistency in approach at different courts, with 58 per cent saying they experienced inconsistencies.

Amanda Millar, president of the Law Society of Scotland, said: “Covid-19 has instigated enormous change in the way we all work over the past year. The legal profession has adapted to this rapid change, however examining what has and has not worked well in relation to online proceedings will be essential as we begin to look at how civil courts should operate post-pandemic.

“We can draw useful insights from the survey findings and they will be helpful in considering what aspects, if any, of remote hearings could or should be incorporated into the civil court procedure longer term. While many of our members have indicated that remote hearings should continue in some form, there should be provision for in-person hearings, particularly in relation to more complex cases, but also for procedural hearings when required.”

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