Civil justice system - pandemic response: research findings

Executive summary

Main messages

• The adoption and use of remote hearings varied considerably between different court and tribunal settings covered by this research, including between different Sheriff Courts.
• The research found diverse views, both across and within particular court/tribunal settings, on the perceived impacts of remote hearings on parties, their representatives, clerks and the judiciary: there was no single, consistent opinion on their impact or their continued use.
• However, there were some common themes in terms of the benefits and challenges associated with remote hearings.
• Common challenges identified across the case and court/tribunal types under study included: issues arising from technical problems; digital exclusion and literacy (particularly, though not only, among parties); and challenges around communicating, both verbally and non-verbally.
• In general, telephone hearings were seen as creating greater issues around communication (with the possible exception of their use for procedural elements of commercial hearings), although they may be less prone than video hearings to technical glitches.
• Remote hearings were seen as having potential benefits for certain groups of vulnerable court users (such as children and young people with additional needs, and parties who had experienced domestic abuse) in terms of allowing easier, more effective participation.
• Benefits in terms of time, costs and comfort for parties and professionals, and work-life balance for professionals, were also discussed across court/tribunal settings. However, views varied on whether or not these benefits outweighed the challenges noted above.
• Suggestions for improvement that would help ensure remote hearings, where they are used, function more effectively for parties and professionals included: improving resources (in terms of IT equipment, internet access, and equipment available to support video hearings); developing a 'triage' system to determine which mode of hearing is appropriate; taking systematic action to address digital inequality among parties; improving or making greater use of functionality within available platforms; improved advanced information and improved guidance around technological issues and practicalities for parties; greater consideration around emotional support and advice for parties attending remotely; enhanced access to electronic documents for party litigants; and further guidance and/or training for judges and clerks.

Aims, scope and methods

This report presents 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. The research was commissioned to improve and expand the existing evidence base, so that any decision on whether remote hearings and other 'pandemic measures' should continue to be used, adapted or discarded is informed by relevant, current and high quality research. It aimed to address three key research questions:

1. In what way have the courts/tribunals under study adapted their processes and procedures as a result of the pandemic?

2. What has been the impact of the pandemic measures adopted by the courts/tribunals, specifically remote hearings, on service users, staff and the judiciary?

3. Do changes need to be made to the pandemic measures, specifically remote hearings, to ensure access to justice for service users? If so, what changes would be suggested?

It would not have been feasible to cover the entirety of Scottish civil justice within a single study. Given this, four specific case types were selected to ensure the research included variety in terms of the nature and sensitivity of case types, the characteristics of the parties involved, and different court/tribunal settings (including those that were and were not already using remote methods prior to the pandemic). The four case types included were:

• Commercial (heard within either the Sheriff Courts or Court of Session)
• Family law (heard within either the Sheriff Courts or Court of Session)
• Mental Health Tribunal for Scotland (MHTS) cases, and
• Health and Education Chamber (HEC) Additional Support Needs cases.

The report draws on multiple data sources, including:

• A rapid review of existing evidence relevant to the different elements of the Scottish civil justice system's pandemic response, as it pertains to the court/tribunal and case types under consideration.
• An online survey of professionals involved in the civil justice system across the court/tribunal and case types covered. This was conducted in September-October 2022 and aimed at providing a broad picture of professional views and experiences of remote hearings.
• Qualitative interviews with 30 parties in family law cases (15), commercial actions (2), the MHTS (6) and the HEC (7) who had experience of a remote hearing since March 2020. Interviews were conducted in late 2022 and early 2023, and explored how pandemic measures shaped their experience of the process and their access to justice.
• Qualitative interviews with 53 professionals, including members of the judiciary (13), clerks of court (8), tribunal members (10), legal representatives (12) and other stakeholders (10) working across the case types covered by the research.

Existing evidence on the use of remote hearings in civil cases

A review of the existing evidence on the impact of remote hearings in civil cases in Scotland prior to the current research found little information on the impact on parties, and a particular lack of data drawn from parties' own accounts rather than that relayed by legal professionals. Where such data did exist, it was confined to specific case types, making it difficult to draw wider conclusions. No existing evidence on the impact of remote hearings on court and tribunal staff working in the civil justice system and very little on their impact on the judiciary was identified in Scotland. Evidence relating to the views and experiences of legal practitioners, mostly drawn from surveys conducted by their professional bodies, revealed that solicitors in Scotland were more positive about remote hearings than advocates were.

Legal professionals were more supportive of the use of remote hearings for non-contentious or procedural matters with many opposing their use in any proceedings where parties are present. Even among those legal professionals who were supportive of the continued use of remote hearings, concerns still existed about their use as a 'default', with most favouring choice, especially between video and in-person hearings, and fewer supporting the continued use of telephone hearings. Negative aspects of remote hearings were identified by legal professionals as being their potential impact on access to justice, concerns about digital inequalities, and changes to the nature and conduct of hearings and to their own working methods. On the other hand, the increased use of electronic documents was seen as a positive consequence of the move to remote hearings.

The remainder of this executive summary outlines the findings from the primary research conducted for this study, structured around the three key research questions.

How have the courts/tribunals under study adapted their processes?

A general issue in assessing the extent of use of remote hearings in the civil cases under study is the lack of data on the number of hearings held by different modes – this was not routinely collected across the courts or tribunals included for the period under study, with the exception of the HEC. However, it was clear from interviews with professionals that there were differences both between the courts and tribunals under study and within them (particularly between different Sheriff Courts) in terms of the pace of introduction of remote hearings and the modes of remote hearings adopted.

The Court of Session had made very limited use of remote hearings for commercial and family cases prior to the pandemic. The court briefly moved to teleconferencing after March 2020 for procedural hearings, but adopted video hearings swiftly after a videoconferencing platform was made available, from June 2020. This videoconferencing platform was then used routinely in the Court of Session for both procedural and substantive hearings until a return to court was allowed. From 25 April 2022, guidance for the Outer House stated that procedural hearings should continue to use video hearings but substantive hearings should return to the physical court room.^[1] Although it was open to parties to move away from this default, there were reported to be few examples of this being requested in either commercial or family cases.

The Sheriff Courts presented a more mixed picture prior to, during, and after pandemic restrictions, with practice reported to vary between and within Sheriffdoms. Pre-pandemic, teleconferencing was in regular use for commercial case management hearings in a number of commercial courts, including Glasgow, Edinburgh and Aberdeen. It was also reportedly used for case management in family actions in Glasgow Sheriff Court. However, clerks interviewed for this study indicated that remote hearings were generally not in common use for family actions before the pandemic. Video hearings appear only to have been used on rare occasions – they were mentioned primarily with respect to allowing international witnesses to join commercial cases.

It was challenging to establish a precise timeline for the introduction of remote hearings in the Sheriff Courts. Civil business was initially paused after lockdown in March 2020. At first, Sheriff Courts moved to telephone hearings, combined with doing some business administratively (on the basis of written submissions). Thereafter, it appears that some Sheriff Courts moved relatively quickly to video hearings in the second half of 2020 (although somewhat later in 2020 than in the Court of Session), while others reverted to in-person hearings with physical distancing in place, and some made greater continued use of teleconferencing. Edinburgh Sheriff Court, for example, continued to use teleconferencing for all commercial procedural hearings, while Glasgow used telephone for all commercial business except proofs. Glasgow also reportedly made more limited use of video hearings for family cases, with the exception of proofs during the pandemic, and reverted to in-person child welfare hearings in advance of central guidance from sheriffs principal^[2] recommending a routine return to court for these (issued in July 2022).

General guidance for civil cases was issued by sheriffs principal in July 2022^[3] stating that, unless otherwise agreed, all procedural business and debates should be conducted remotely and all proofs and substantive hearings in person. However, as of late 2022/early 2023 when this research was conducted, the situation in practice appeared to be more 'fluid' for commercial cases, with some sheriffs conducting most business remotely and others returning to the courtroom for all business, including procedural hearings. Similarly, an advocacy organisation noted variations in approach between individual Sheriff Courts, with some believed to be continuing to hold child welfare hearings remotely in early 2023.

The MHTS was one of the first settings to introduce remote hearings post-lockdown, moving swiftly to implement teleconferencing hearings with effect from 23 March 2020. By the end of March 2021 over 5,000 MHTS hearings had been conducted by telephone and by November 2021 over 8,000 such hearings had taken place. Use of video hearings has been limited in the MHTS – by January 2023, video facilities were only available in four hospitals. While some in-person hearings restarted from July 2020, their use was initially limited by restrictions on suitable venues. By November 2021, in-person hearings were possible in eight hospitals, while by January 2023 it was possible to schedule in-person hearings at 23 hospital venues. However, in-person hearings required completion of a 'Hearing Preference Form', and in her introduction to the 2021/22 annual report, the MHTS President noted that "completion rates of these forms remain low".^[4]

The HEC, which has a much smaller caseload in comparison with the MHTS (202 cases in 2022/23), was the first Scottish tribunal to use video hearings. It conducted 52 hearings between August 2020 and September 2022 following a pilot in July 2020. Video hearings have continued to be used in the HEC, alongside a phased reintroduction of in-person and hybrid hearings. As of February 2023 in-person and hybrid hearings were available, but in a more limited number of SCTS venues across Scotland compared with in-person hearings prior to the pandemic (when in-person hearings were held across Scotland in a larger number of venues, including hotel conference rooms).

In addition to remote hearings, the pandemic also resulted in the acceleration of a number of other uses of digital technology across the courts and tribunals under study, specifically greater use of electronic documentation (instead of paper bundles), greater use of screensharing of documents (in video hearings), and use of e-signatures in the Court of Session and Sheriff Courts. The use of electronic documents in particular had begun pre-pandemic, but this was extended as a result of the move to remote hearings.

What has been the impact of pandemic measures on service users, staff and the judiciary?

There was no single, consistent picture in terms of the perceived impacts of remote hearings on parties, their representatives, clerks and the judiciary. As noted above, the specific case types were selected to ensure that the breadth and diversity of parties, sensitivities, settings and previous experiences of remote hearings that exist within the civil justice system were captured as far as possible, rather than to be representative of all civil cases, or of the most common types of civil cases. It is therefore necessary to apply caution in generalising from the findings based on these four case types to all other civil cases (particularly given that debt cases, the most common form of civil action, were not covered). However, what is evident from this research is that there is no 'one size fits all' answer in terms of whether or not remote hearings 'work' for civil cases, either for all court users, or for all hearing types.

At the same time, some issues were highlighted repeatedly by parties and professionals across the four case types. Technical problems, digital exclusion and digital literacy (particularly, though not only, among parties), and challenges around communicating, both verbally and non-verbally, were highlighted as creating challenges in remote hearings across case types. In general, telephone hearings were seen as creating greater issues around communication (with the possible exception of their use for procedural elements of commercial hearings), although they were viewed by participants as being less prone to technical glitches than video hearings. Meanwhile, the potential for remote hearings to offer easier, more effective participation for certain groups of vulnerable courts users (such as children and young people with additional needs, or parties who had experienced domestic abuse) was also highlighted across case types (albeit less so for commercial cases). Again, while caution is required in generalising to other civil case types, given that these issues were identified across these deliberately diverse case types it might reasonably be expected that they would also be relevant to other civil hearings.

Impacts on parties

There were some common themes in terms of the perceived impacts of remote hearings on parties, including:

• The perceived detrimental impacts of technological issues on their ability to join and participate effectively, particularly for parties who were digitally excluded in terms of access to an appropriate, private device(s) or who lacked digital skills and confidence.
• Challenges around communication, in particular between parties and their legal representatives during hearings.
• The loss of the ability to convey information through non-verbal communication, including body language.

Professionals in all contexts expressed concerns about these issues. However, the extent to which they were viewed as significant barriers to access to justice in practice varied between contexts. Moreover, there was less consensus among parties even within some contexts over the extent to which they had affected them in practice.

Family law parties, in particular, expressed mixed views on how far each issue had been a barrier for them in practice, and as a result expressed very different attitudes and preferences around remote hearings. While professionals working in both commercial and family cases expressed a strong view that party litigants experienced greater barriers in remote hearings, this division was much less clear cut in the views of family law party litigants and represented parties interviewed for this study. Family law parties also varied in whether they thought it was harder to communicate in an in-person or a remote hearing: some felt the loss of body language obscured their 'real personality' (which they thought was essential to convey in a context where their parental role was being discussed); others felt it was easier to communicate and interject in a remote hearing.

For the small number of commercial parties interviewed, not feeling able to communicate effectively with their legal representatives during remote hearings had been a major frustration. The loss of informal communication (the 'tug of the gown') inside and outside the courtroom between legal representatives was also viewed by professionals (and commercial parties) as something that could negatively impact on the likelihood of settlement in both commercial and family cases, to the detriment both of parties and the efficiency of the court system.

The issues raised around parties' participation in the MHTS reflected the dominance of telephone as the main mode for remote hearings. However, again, there was a perception among professionals that telephone hearings could have positive or negative impacts for parties, depending on their needs. Some young people might be more comfortable about taking part without being seen, for example, while other groups, such as those with dementia, struggled to follow what was happening in a telephone hearing. Remote hearings were also viewed as creating particular difficulties for community patients, who may be joining on their own from home and be left without support after receiving a potentially distressing decision.

In contrast, although there were still some concerns among HEC professionals around these issues, HEC parties generally indicated that they had experienced fewer issues around either technology or communication than they had expected. In fact, the move to remote hearings was perceived as having potentially made it easier for some children and young people involved in HEC cases to take part, by enabling them to view part of a hearing and decide whether or not they would like to contribute from the comfort of their own home.

Benefits to parties in terms of time, costs and comfort were also discussed across the four court/tribunal settings. However, whether or not these benefits were seen to outweigh the challenges discussed above varied depending on other elements of parties' experiences. In the HEC, the benefits of being able to join from home in terms of time, comfort, and the feasibility of fitting hearings around childcare commitments (which could be especially difficult to arrange for parties whose children had additional support needs) were seen as major positives. However, in the MHTS, parties discussed the fact that, although in some respects they felt more comfortable joining from home, they were not always convinced this was 'right' when decisions were being taken that had a significant effect on their future.

Impacts on professionals

As with parties, there were some common themes in the perceived impacts of the move to remote hearings on professionals, including:

• Technological issues, support and training
• Impacts on workload and roles, and
• Impacts on their wider wellbeing.

However, again perceptions of the nature and level of impact of these issues varied, not only between different court/tribunal contexts, but also between and within different professional groups.

Professionals working in the courts all described technological issues that had presented barriers to effective hearings, such as participants dropping off calls or having problems joining. Issues around their own access to suitable devices appeared to be experienced most acutely by tribunal members. Judges were frank in their assessment of the poor quality of broadband in many public buildings, including the court estate, while clerks noted that courtrooms were not always equipped with sockets and screens to enable video or hybrid hearings. HEC tribunal members also emphasised that if video hearings are to be an ongoing feature of their work, then equipping them appropriately was a basic necessity.

Support and training around both technology and managing remote hearings more generally was also raised as an issue, although again experiences differed across contexts. Professionals in HEC hearings tended to be very positive about the level of support for remote hearings (particularly that provided by clerks), while one advantage of the use of telephone in the MHTS was that it was easy and did not require special training or instructions. In the courts, however, professionals described more challenges. Members of the judiciary observed that there was little IT support when things went wrong, beyond what clerks were able to provide. Clerks themselves noted that, while they had received some training on the videoconferencing platform, this had not equipped them to 'trouble-shoot' the problems other participants might experience accessing hearings.

Across both commercial and family cases, there was a marked difference between professionals' perceptions of the impact of remote hearings on their workload, and the impact on their wellbeing: the survey indicated that, on balance, more felt that remote hearings had a positive than a negative impact on workload, while the reverse was true with respect to wellbeing.

With respect to both workload and wellbeing, solicitors working in the courts were perhaps less negative than other professionals interviewed, describing the benefits in terms of reduced travel and more efficient time use. Advocates and members of the judiciary working in the courts were more negative. Judges described a lack of 'downtime' between hearings, and frustrations with the slowness of some elements of digital processes as creating additional workload. They reported feeling more 'intellectually tired' from long periods on screen. For advocates, and for some solicitors, the impact on wellbeing was linked to the perceived erosion of key elements of their professional life, including greater social isolation and loss of informal learning opportunities.

Legal representatives and independent advocates working in the two tribunals discussed the negative impacts for their own wellbeing of feeling less able to support their clients emotionally as well as legally when they could not be in the same room for a hearing. In the MHTS, there were, however, some personal safety concerns among legal representatives around being alone with clients in the community in order to support them in this way. Tribunal members in both the MHTS and HEC were keen to stress that the impact on their own workload was secondary to the ability of the system to work well for parties. However, as with those working in the courts, they regretted the loss of social interaction and opportunities for informal learning from colleagues, with HEC members also reflecting on the additional tiredness that can result from concentrating for hours on screen.

Clerks felt that some elements of remote hearings, including setting up video hearings and finding email contact details for all participants, were more time consuming compared with in-person hearings. Court clerks were also required to stay in the hearings to manage the videoconferencing platform and let in witnesses – something bar officers would have dealt with pre-pandemic. However, clerks working in the HEC noted that they had benefited significantly from reduced travel time, since they had previously had to facilitate hearings across Scotland.

Other impacts

In addition to direct impacts, professionals also discussed a range of broader impacts of remote hearings relating to the perceived effectiveness of hearings and to the rule of law, including:

• Issues around body language and non-verbal communication
• Issues relating to formality and the rule of law, and
• Issues relating to the transparency of hearings.

Issues around body language were frequently raised by professionals. However, as with parties, there were mixed views on whether and how the loss of 'non-verbal' communication impacted on proceedings. Solicitors and advocates, particularly those working in the courts, expressed concerns that the reduction in non-verbal communication associated with remote hearings (particularly telephone hearings, but also video) created difficulties in assessing witness credibility and reliability. There was some resistance to this view among judges, however, who felt that body language was not (and should not be) a central part of their assessment. Similarly, tribunal members in the MHTS and HEC commented that there could be advantages in not being able to see body language, in terms of avoiding unjustified assumptions based on a person's appearance or demeanour.

However, tribunal members and judges working on family law cases in particular commented that the loss of body language and non-verbal cues could be an issue in terms of being able to identify when a party is struggling or needs to take a break. A slightly different point was made by sheriffs, who felt that body language could make an important contribution to child welfare hearings in enabling them to set the tone and establish good personal interactions to support the problem-solving nature of the hearing.

The degree of formality that was appropriate in a court or tribunal hearing, and the impact of hearings being held remotely on this, was another recurrent theme among professionals. In the court setting in particular, there was concern from professionals that remote hearings had led to an erosion of formality – in terms of dress, language, and joining locations – which had in turn undermined the solemnity of proceedings and the weight that they carried for participants. Even in the deliberately more relaxed setting of the HEC, a degree of formality was considered important by both professionals and parties as a reminder that it is a legal process which should be taken seriously by all those involved. At the same time, both parties and professionals questioned whether an element of reduced formality, as afforded by remote hearings, could be helpful in enabling some parties to participate more effectively.

Transparency of hearings, in the sense of public (and press) access, was only discussed in detail with respect to commercial hearings. MHTS and HEC hearings are largely held in private, something that has not changed as a result of remote hearings. Many substantive family actions are also private, and the concerns raised in respect of family hearings tended to relate more to preserving this privacy and avoiding the potential recording or sharing of remote hearings (something which interviewees gave real life examples of). While 'open justice' could be regarded as something of a theoretical concern in commercial actions, given the general level of public interest in these hearings, it was nonetheless a significant concern for professionals, particularly the judiciary, as a 'core component of the rule of law'. There was a perception that there were too many obstacles for members of the press or public to overcome to join remote hearings, and that the process needed to be made easier.

Do changes need to be made to the pandemic measures?

Suggestions for improvement to remote hearings and other pandemic measures to better ensure access to justice for service users again varied between different case types and contexts. Drawing on both suggestions from parties and professionals and the issues identified in this research, possible improvements included:

• Improving the resources to support both in-person and hybrid hearings – in the courts, this was particularly focused on better IT equipment and internet connections in court buildings; in the tribunals, it was particularly focused on expanding the number of venues suitable for in-person hearings (as it was reported that a number of venues previously used for tribunal hearings have been re-purposed or are no longer used for hearings since the pandemic) and (particularly for MHTS) expanding equipment for video and hybrid hearings. Equipping professionals was also considered important.
• Developing a 'triage' system and guidance on deciding on mode, to support offering choice to parties in the tribunals, and to help the courts determine when it may be appropriate to vary from the default recommendations.
• Taking a systematic approach to addressing digital inequality among parties, including considering providing appropriate spaces and equipment to join remote hearings in courts or other public buildings.
• Improving, or making greater use of, functionality within available platforms. This could include greater use of messaging facilities and private meeting rooms within the video conferencing platform to facilitate communication between parties and their representatives, as well as making of recordings and automated transcripts, to reduce costs to parties (particularly party litigants). Improving security measures and protocols to reduce security risks around third parties joining private hearings or hearings being recorded may also be helpful. Another suggestion, from those professionals who felt remote court hearings would benefit from greater formality, was that more could be done to replicate the court room environment within a video hearing (this was not suggested for the tribunals).
• Improved guidance around technological issues and practicalities for parties. This was highlighted particularly by family law parties, but is potentially relevant across contexts. It may also be worth considering developing SCTS-wide guidance on how to manage hearings when technical issues do arise, since even with the improvements above these are still likely to occur from time to time.
• Improved advance information for parties generally. In addition to ensuring that parties (particularly party litigants) received joining details for remote hearings in a timely manner (raised in relation to family hearings specifically), it was suggested that parties would also benefit from improved advance information about what to expect (and what is expected of them – for example in terms of dress) in hearings more generally.
• Greater consideration of issues around the advice and emotional support that parties might need, particularly where (as in the MHTS and HEC, and potentially in family law cases), they are potentially vulnerable, or where (as in the MHTS) they may be joining remote hearings alone at a time of crisis.
• Enabling greater access to electronic documents for party litigants, in addition to other improvements to the digital document system to enhance speed, efficiency and accuracy for all court users.
• Finally, in addition to recommendations to improve the experience of remote hearings and other pandemic measures for parties, it was also suggested that judges and clerks in particular might benefit from enhanced guidance and/or training to better equip them for this element of their role, and to enable them to better support parties and (for clerks) the court.