Civil justice system - pandemic response: research findings
Findings from research exploring the impacts of remote hearings and other measures introduced or expanded during the COVID-19 pandemic on Scotland’s civil justice system.
Footnotes
1. Guidance for Supreme Court Users, para 2.2
2. Guidance for Court Users: Child Welfare Hearings in the Sheriff Court
3. Guidance for Court Users, paras 2.1 and 2.2
4. MHTS Annual Report 2021-22, President's Foreword, 1
6. SCTS Annual Report and Accounts 2021-22 (figures based on tallying the numbers of receipts to the Upper Tribunal, First-tier Tribunals and other tribunals administered by the SCTS, from the tables on pp75-77)
7. SCTS Annual Report and Accounts 2021-22
8. For further exploration of the nature and use of CWHs see the 2017 report by R. Whitecross and C.Lindsay, "Use and Implementation of OCR Chapter 33A in Section 11 Order Proceedings".
9. SCTS Corporate Plan 2020-3, 8
10. SCTS Digital Strategy 2018-23, 1
11. Civil Justice Statistics Scotland 2021-22, 9
12. SCTS Corporate Plan 2020-3
13. SCTS Respond, Recover, Renew (2020)
14. The rollout of electronic documents and signatures was already underway as part of SCTS's digital strategy but was accelerated and written into law by the Coronavirus (Scotland) Act 2020
15. N. Byrom (2019) Developing the Detail: Evaluating the Impact of Court Reform in England and Wales on Access to Justice, Report and recommendations arising from two expert workshops (Legal Education Foundation), 5
16. Consultation: Rules Covering the Mode of Attendance at Court Hearings (2021)
17. Nicole Busby, Morag McDermont, Fighting with the Wind: Claimants' Experiences and Perceptions of the Employment Tribunal (2020) Industrial Law Journal, Volume 49, Issue 2, 159–198
18. The obvious example being parties who appear before the MHTS for periodic review of compulsory orders. An insurance company executive interviewed for the commercial chapter of this report was another example.
19. Janet Clark, HM Courts and Tribunals Service, Evaluation of remote hearings during the COVID 19 pandemic (2021)
20. Natalie Byrom, Sarah Beardon, Abby Kendrick, The impact of COVID-19 measures on the civil justice system (2020) Civil Justice Council and Legal Education Foundation
21. The equivalent term in England and Wales for 'party litigants'.
22. Byrom et al, 2020 (see full reference above), 10
23. Janet Clark, HM Courts and Tribunals Service, 17. For a review of the available evidence from England and Wales, see House of Lords Select Committee on the Constitution, COVID-19 and the Courts, 22nd Report of Session 2019–21 HL Paper 257
24. Janet Clark, HM Courts and Tribunals Service (full reference above), 17
25. Law Society of Scotland, Civil Courts Online Survey Summary- Analysis of Research (2021)
26. Faculty of Advocates, Covid Remote Working Post-pandemic Survey (2021)
27. Analysis of Responses to the Mode of Attendance Consultation (2022)
28. Consultation on the Coronavirus (Recovery and Reform) (Scotland) Bill and Analysis of Responses (2022)
29. Law Society of Scotland consultation response (2021); Faculty of Advocates response to Consultation paper on rules covering the mode of attendance at court hearings issued by the Scottish Civil Justice Council (2021)
30. Sheriffs Principal of Scotland, Senators of the College of Justice and The Sheriffs Association and the Summary Sheriffs' Association (joint response)
31. Cheryl Thomas 2022 UK Judicial Attitudes Survey, Report of findings covering salaried judges in Scotland (2022) UCL Judicial Institute.
32. Cheryl Thomas, 2020 UK Judicial Attitudes Survey, Report of findings covering salaried judges in Scotland (2021) UCL Judicial Institute. Previous surveys were conducted in 2014 and 2016
33. Fee-paid judges are paid according to the number of sittings or days worked.
34. For specific data on the experiences of tribunal judges in England and Wales see Natalie Byrom and Sarah Beardon, Understanding the impact of COVID-19 on tribunals The experience of tribunal judges (2021) Tribunals Judiciary and Legal Education Foundation
35. See Senators of the College of Justice response, para 6
36. Respondents were able to select multiple responses.
37. Although SCTS adopted one official platform for remote video hearings, a later closed question (Q8) which asks about preferred methods for appearing remotely lists alternative remote videoconferencing platforms(as well as telephone) as possible options.
38. SCJC (2022) (full reference above), 9
39. SCJC (2022) (full reference above), 21
40. SCJC (2022) (full reference above), 20/21
41. Law Society of Scotland response to the SCJC draft rules, 3
42. SCJC (2022) (full reference above), 6
43. SCJC (2022) (full reference above), 13
44. For a commentary on access to justice issues, particularly for party litigants, see Tracey Reilly, We need to ensure access to justice in this digital world (2022) Citizens Advice Scotland
45. Respondents were able to select multiple responses.
46. FoA (2021) (full reference above), 6
47. For a general, non-Scotland specific account of how public access to courts was affected by the pandemic, see Judith Townend & Paul Magrath, Remote trial and error: how COVID-19 changed public access to court proceedings (2021) Journal of Media Law, 13:2, 107-121
48. FoA (2021) (full reference above), 14
49. US research on the psychological impact on legal professionals of conducting hearings remotely is reported in Berkeley Research Group (2021)
50. FoA (2021) (full reference above), 15
51. FoA (2021) (full reference above), 14.
52. As noted above, it is not possible to tell whether these individual respondents were professionals or parties.
53. Extending the measures on a more permanent basis was supported by a number of organisations of relevance to the current research including SCTS, the Senators of the College of Justice, Society of Messengers-at-Arms and Sheriff Officers, Scottish Independent Advocacy Alliance, and Scottish Women's Aid
54. SG (2022) (full reference above), commentary on responses to J2
55. Civil Justice statistics 2021-22, Main Tables, see Tables 12, 13, 19 and 20; commercial actions in the Court of Session are not shown separately from ordinary actions in the Outer House (note 33, Main Tables)
56. Sometimes referred to as "Chapter 40 procedure" - the Act of Sederunt (Ordinary Cause Rules) Amendment (No.3) (Commercial Actions) 2000 inserted a new chapter (Chapter 40) into the Ordinary Cause Rules 1993. Glasgow Sheriff Court was the first to do so, with four designated commercial sheriffs
58. Data provided to the research team by SCTS case management system as of 14th July 2022. These figures are more up to date and differ slightly from Civil Justice Statistics in Scotland 2021-22
59. Confirmed by SCTS digital team. Teleconferencing facilities are provided throughout the court estate by Cisco Conference Now, see SCTS Teleconferencing Guide
60. Guidance for Supreme Court Users, para 2.2
61. These are also among the busiest courts for civil business, see Civil Justice statistics 2021-22, Supplementary Data, Table S1
62. It is not clear to what extent teleconferencing continued to be used in all Sheriffdoms, but data is reliable for Glasgow and Edinburgh Sheriff Courts
63. Civil Justice Statistics Scotland 2021-22, Supplementary Data, Table S1. 19% were initiated in Glasgow, 12% in Edinburgh; 17% were disposed of in Glasgow, 10% in Edinburgh
64. Despite some negative comments from the Inner House about the practice of transacting court business by private telephone conference call in Jackson v Hughes Dowdall 2008 SC 637 and ASC Anglo Concrete v Geminax 2009 SLT 75
65. The solicitor advocate involved in this case has written about the experience, see Where are the courts with their use of technology?
66. Guidance for Court Users, paras 2.1 and 2.2
67. Helpful contributions from a commercial perspective were, however, made by Lord Tyre and Lord Justice Flaux to the Report on the Civil Justice Conference of 10 May 2021. A number of practitioners have also written about their own experience, for instance "Remote hearings: finishing ahead?"
68. Consultation: Rules Covering the Mode of Attendance at Court Hearings (2021), para 37
69. This borrows from the work of N. Byrom (2019) Developing the Detail: Evaluating the Impact of Court Reform in England and Wales on Access to Justice, Report and recommendations arising from two expert workshops (Legal Education Foundation), 5
70. Other differences in the proportion of family law and commercial law respondents saying issues were common were not statistically significant.
71. As noted in chapter 1, exact numbers of party litigants are not available from SCTS data
72. Lord Pentland emphasises the importance of the court as a physical place in his contribution to Report on the Civil Justice Conference of 10 May 2021
73. A (Respondent) v British Broadcasting Corporation (Appellant) (Scotland) [2014] UKSC 25 per Lord Reed at para 23.
74. It should be noted that only 25 commercial advocates responded to the survey
75. Commercial actions: guidance for practitioners (2017).
76. Chapter 33, OCR
77. Chapter 49, RCS
78. Civil Justice Statistics in Scotland 2020-21, 18
79. Civil Justice Statistics in Scotland 2020-21, 3 and Civil Justice Statistics in Scotland 2021-22, 9.
80. Civil Justice Statistics in Scotland 2021-22, 19
81. Civil justice Statistics in Scotland 2019-20, figure 9
82. Sheriff Principal Anwar, Contribution to Civil Justice Conference, 10 May 2021
83. Lord President, Coronavirus Crisis: Guidance on Compliance with Court Orders Relating to Parental Responsibilities and Rights, 27 March 2020
84. Lord President, Coronavirus Crisis: Updated Guidance on Compliance with Court Orders Relating to Parental Responsibilities and Rights, 16 July 2020
85. Guidance for Court Users: Child Welfare Hearings in the Sheriff Court
86. For an early comment on the difference in pace between the systems see, Pryde, A tale of two systems: COVID-19 and the courts., 2020
87. NFJO, Remote hearings in the family justice system: a rapid consultation.
88. NFJO, Remote hearings in the family justice system: reflections and experiences.
89. Sheriff Wendy A Sheehan, President, Sheriffs' Association, Civil Justice Conference, May 2021.
90. The Hon Lady Wise, Procedural Hearings and Debates in the Scottish civil courts post-pandemic, Civil Justice Conference, May 2021.Note that the example was of an English judge, explaining the use of the term "litigant in person" rather than the Scottish usage of "party litigant".
91. Sheriff Wendy A Sheehan, President, Sheriffs' Association, Civil Justice Conference, May 2021.
92. Note that the questionnaire asked identical questions about hearings 'where evidence is heard' and hearings that are 'purely procedural' for each of the four case types. CWHs arguably fall outwith this binary categorisation: a point highlighted by the decision of the Sheriff Appeal Court in LA v JJH; J Forsyth, "'Wake-up call' on evidential child hearings".
93. Under the Mental Health (Care and Treatment) (Scotland) Act 2003 ("the Act")
94. For guidance to parties see: A Guide for Service Users and Website Frequently Asked Questions
95. For further information, see What is Independent Advocacy?
96. Under the Mental Health Tribunal for Scotland (Practice and Procedure) Rules 2005
97. See The New Mental Health Act: A Guide to Named Persons
98. Anecdotal accounts indicate that most parties are legally represented at MHTS hearings, although it has not been possible to verify this by way of published statistics
99. Statistics are drawn from the MHTS Annual Reports for 2018/19, 2019/20, 2020/21. 2021/22 all available on the MHTS Website.
100. MHTS Annual Report 2021/22, 3
101. For a breakdown of 2020/21 applications, see MHTS Annual Report 2020-2021, Applications, Appeals, References and Reviews dealt with by the Tribunal in 2020/2021, by individual sections of the Mental Health (Care and Treatment) (Scotland) Act 2003, 4
102. MHTS Annual Report 2019-2020, President's Foreword, 2
103. MHTS Annual Report 2020-2021, President's Foreword, 1
104. MHTS Annual Report 2020-2021, President's Foreword, 1
105. MHTS Service Users, Carers and Advocacy Workers Forum, Ways of holding hearings – discussion, accessed late 2022.
106. MHTS Annual Report 2021-22, President's Foreword, 1
107. Royal Cornhill in Aberdeen, the State Hospital in Carstairs, Forth Valley Royal in Larbert and Mid Argyll Hospital in Lochgilphead
108. MHTS, News Page.
109. MHTS Annual Report 2021-22, President's Foreword, 1
110. MHTS, A year of telephone hearings: some findings from the year 2020-2021
111. MHTS, A year of telephone hearings: some findings from the year 2020-2021, 1
112. MHTS, A year of telephone hearings: some findings from the year 2020-2021, 10
113. MHTS, A year of telephone hearings: some findings from the year 2020-2021, 10
114. MHTS Service Users, Carers and Advocacy Workers Forum
115. Jill Stavert, Michael Brown Aimee McDonald (2022) The Mental Health Tribunal for Scotland: the views and experiences of Patients, Named Persons, Practitioners and Mental Health Tribunal for Scotland members and The Scottish Mental Health Law Review 2022, final report
116. Stavert et al (full reference above), Chapter 4
117. The Scottish Mental Health Law Review 2022, final report, recommendations 4.12 (at 48) and 5.4 (at 166)
118. A relatively higher proportion of MHTS respondents said they did not know how well remote hearings worked for 'procedural' hearings. This reflects the different nature of MHTS hearings, which are not divisible into procedural and evidential business.
119. We focus on findings for telephone hearings here since this is by far the most common mode within the MHTS. However, the Tables in Annex A also include views on video hearings, among respondents with experience of MHTS. It is possible that some of these professionals have attended MHTS hearings by video. However, as this has been relatively uncommon, it could also be because some of those professionals who attended MHTS hearings also took part in other types of hearing by video.
120. MHTS A year of telephone hearings: some findings from the year 2020-2021
121. The Mental Welfare Commission monitors and reports on the number of young people under the age of 18 admitted to non-specialist hospital wards, primarily adult wards, in Scotland. The reasons for such placements are a shortage of specialist beds, and a lack of certain types of provision: Young people monitoring report 2021-22
122. In face-to-face hearings, parties and all others present apart from the tribunal members are sent out to wait until the decision is made. It seems that this generally happens at a more leisurely pace than in telephone hearings, or at least the time taken is not specified as it is for telephone hearings.
123. This view is echoed in Stavert et al. which reports that parties and others as well as professional respondents saw the outcomes of hearings that they had been involved with as a "foregone conclusion", see Stavert et al (full reference above), 42 and 68.
124. This includes both MHTS and HEC tribunal members, but responses were primarily from MHTS members
125. MHTS Annual Report 2021/22, President's Foreword, 1
126. The IA does not receive their own copy but relies on the party sharing relevant paperwork
127. Justice Delivered: A report into the impact of the COVID-19 pandemic on the delivery of justice in the Health and Education Chamber (2022), 4
128. Health and Education Chamber, Information on Additional Support Needs.
129. See Case Work Overview in Tribunal Forum (Virtual) September 2022 – Presentation
131. Justice Delivered (full reference above), 16
132. Justice Delivered (full reference above), 17
133. Justice Delivered (full reference above), 25
134. The President issued new hearings guidance, revoking the former guidance which applied to the COVID-19 outbreak, see Guidance to Tribunal Members (Feb, 2023). The guidance states (at para 17) that, to facilitate SCTS sanitisation routines, "In-person hearings must take place in a Scottish Courts and Tribunals Service (SCTS) venue until the President advises otherwise. These include the sensory hearing suite in the Glasgow Tribunals Centre, or Inverness Justice Centre, or George House, Edinburgh".
135. Justice Delivered (full reference above), 4
136. Justice Delivered (full reference above), 26
137. Justice Delivered (full reference above),13
138. Justice Delivered (full reference above), 14
139. 35% were unsure how well video hearings work for procedural hearings. As with the MHTS, this may reflect the different nature of HEC hearings, which do not split as obviously into procedural and substantive business as in the courts. However, once those who said they did not know are removed from the base, most respondents said video can work well for both procedural and evidential hearings in HEC.
140. Of tribunal members (of which there are 34 in total) split between 14 legal and 20 ordinary members
141. There were too few participants with a view on the use of telephone for evidential hearings in the HEC or of hybrid hearings in general to draw more than very tentative conclusions, although the figures indicate telephone is viewed less favourably than video in this context.
142. As video hearings are by far the most common type of hearing in the HEC, with very little use of telephone hearings, findings from the survey in the remainder of this chapter focus on views of video hearings.
143. It has not been possible to verify if this has in fact been the case by way of statistical information
144. Debates are included in substantive in-person hearings in the Court of Session, but are presumed to be remote in the Sheriff Courts
145. Guidance for Court Users: Proceedings in the Sheriff Courts (July 2022); Guidance for Supreme Court Users (April 2022); Guidance for Court Users: Child Welfare Hearings in the Sheriff Court
146. With respect to a triage system, it was also noted that new family court rules have recently been introduced, requiring a case management hearing at the same time as the first child welfare hearing to give the court chance to assess the complexity of the case and whether it should be 'fast-tracked' to proof – see rule 33.36J, which comes into force on 25 September 2023 SSI 2022 No. 289.
147. Back in May 2022, the MHTS service users' forum had suggested that a document with the pros and cons of each type of hearing might assist parties in deciding what type of hearing would best suit them. See Chapter 5, 66
148. Virtual courts (scotcourts.gov.uk)
149. See Information Note No 01/2021 for parties, representatives, witnesses and supporters; guidance on the use of electronic bundles President's Guidance to Administration and Parties 01 2022: Documentary Evidence.
150. Health and Education Chamber, Social Story about Additional Support Needs.
151. The SCTS currently provides general information on its website for parties joining remote hearings and this approach could be adopted with specific instructions, particularly for those using the Sheriff Courts: see Access to virtual hearings
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Email: Jocelyn.hickey@gov.scot
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