Civil justice system - pandemic response: research findings

1. Background 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. This introductory chapter provides a brief overview of the context, scope, aims and methods for the research. It discusses the limitations of the research and sets out the structure and conventions that apply to the remainder of the report.

The Scottish civil courts and tribunals

The Scottish Courts and Tribunals Service (SCTS) is an independent body corporate established by the Judiciary and Courts (Scotland) Act 2008. It provides administrative support to all Scottish courts and tribunals. Business is split between the criminal jurisdiction, the civil jurisdiction and the devolved tribunals. The service registers approximately 70,000 civil cases per year (compared with around 100,000 criminal cases)^[5] and over 10,000 tribunal cases.^[6] In 2021-22, SCTS's gross expenditure was £214.9m.^[7]

The civil courts

Civil actions involve the settlement of disputes concerning the rights and obligations of individuals and organisations and are characterised by party-to-party litigation. The Sheriff Courts and the Court of Session are central to Scotland's civil justice system. The Sheriff Courts have exclusive jurisdiction to hear cases worth up to £100,000 at first instance. The Court of Session, the highest civil court in Scotland, is divided into the Outer House, which includes the Commercial Court, and deals with certain types of complex case and those worth over £100,000, and the Inner House, which hears appeals from the Outer House and the Sheriff Appeal Court.

The civil courts are involved in both procedural and substantive hearings. Procedural hearings generally provide an opportunity to determine the further procedures which are to be followed in a case. No evidence will be heard and no decisions which have any bearing on the merits of the case will be taken. A 'debate' (or 'procedure roll' hearing in the Court of Session) is a hearing on legal arguments which will be appropriate where a preliminary legal issue, such as relevance or jurisdiction, needs to be resolved before any factual dispute can be considered. No witness evidence is heard at a debate. The hearing of evidence in a case takes place at a civil trial known in Scotland as a 'proof'. A 'proof before answer' is a hearing on both factual and legal issues which will be appropriate where the court needs to hear the evidence before addressing the legal issues. The civil courts may also have non-evidential hearings which can be substantive in nature: Child Welfare Hearings (CWH) in family cases are an example. ^[8]

Although parties can be legally represented in civil actions, there is no requirement that they must be. Solicitors can represent parties at all hearings in the Sheriff Court but only advocates or solicitor advocates or lay representatives can appear in the Court of Session. A person who is involved in civil court proceedings without representation from a solicitor or advocate is referred to in Scotland as a 'party litigant'. A party litigant can ask the court for permission for someone who is not a lawyer to represent them at a hearing in the form of a lay representative. Alternatively, the rules of court allow for party litigants to be accompanied by someone for moral support and advice (a courtroom or lay supporter), but that person is not allowed to speak on behalf of the litigant.

The Scottish Tribunals

The Scottish Tribunals consist of two tiers. The First-tier Tribunal is divided into a number of chambers with specialist jurisdictions including the Health and Education Chamber (HEC). The Upper Tribunal hears appeals from the chambers of the First-tier Tribunal. In addition, a number of self-standing specialist tribunals are administered by SCTS including the Mental Health Tribunal for Scotland (MHTS).

Introduction of remote hearings and other 'pandemic measures'

The overall purpose of SCTS is supporting justice. As summarised in its Corporate Plan, SCTS seeks to deliver on this purpose by focusing on "improving access to justice, reducing delay and cost within the justice system and maximising the use of technology to improve our services".^[9]

Providing digital services across court and tribunal business was a key element of SCTS's plans for achieving its aims pre-pandemic, as set out in its Digital Strategy for 2018-2023, which stated:

"Whilst significant cases will always involve formal hearings in a court or tribunal people increasingly expect us to work flexibly and transact digitally. Those using the system will struggle to understand if simple administrative business is carried out on paper alone or if routine steps in cases can only proceed if a wide range of people attend a hearing at a particular place and time."^[10]

Plans included: a continuation of the shift from paper based to electronic processes; an uptake in digital services which would reduce the number of people attending court and tribunal facilities; online access to information and advice in line with public expectations; and digital delivery of services. In 2019 the Civil Online service was launched in the Sheriff Courts for simple procedure cases (which, along with the All-Scotland Sheriff Personal Injury Court, account for 49% of all civil court business^[11]), representing a fully digital service for around 40% of the civil caseload. By integrating digital case files, the online submission of cases and lodging of documents, and online court fees' payment processes, all stages of a case could be dealt with digitally.^[12]

However, the Covid-19 pandemic dramatically changed the context for the digitisation agenda, accelerating the introduction of digital measures to enable SCTS to be able to continue delivering court and tribunal services in Scotland while Covid-19 restrictions remained in place. In August 2020, SCTS published 'Respond, Recover, Renew', which set out how it had responded to the imposition of 'lockdown' restrictions in March 2020.^[13] Within the civil justice system, this focused on the use of remote hearings, using both telephone and videoconferencing. A videoconferencing platform, was purchased and rolled out by SCTS for use across the Court of Session and Sheriff Courts as well as the HEC during 2020, while MHTS hearings moved to teleconferencing. Other 'pandemic measures' included wider adoption of electronic or digital procedures, for example in the distribution of paperwork, notifications, and collection of signatures.^[14] It should be noted that this report does not reference the videoconferencing platform purchased by SCTS by name to ensure the discussion of video hearings reflects the more general strengths and weaknesses of this mode of hearing, as opposed to any specific strengths or weaknesses of the platform itself. Where the name of the platform appears in direct quotations, it has been removed and replaced by either 'video hearing' or 'videconferencing platform'.

The exact nature and timing of the various pandemic measures adopted in civil justice in Scotland varied between different courts and tribunals. Moreover, the extent of the continued use of remote hearings since the lifting of Covid-19 restrictions has also varied between different courts and case types. Both these points are discussed in more detail in the introductions to subsequent chapters of this report.

Aims and scope of the research

Aims

The main aim of this research was to improve and expand the existing evidence base on remote hearings and other pandemic measures adopted by the Scottish courts and tribunals, so that any decision on whether they should continue to be used, adapted or discarded is informed by relevant, current and high quality research. To meet this aim, the research was structured around the following key 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 pandemic measures, specifically remote hearings, to ensure access to justice for service users? If so, what changes would be suggested?

Across questions 2 and 3 in particular, a key consideration was the extent to which pandemic measures were believed to impact – positively or negatively – on access to justice for court and tribunal users. The definition of access to justice adopted in this research consists of four parts:

• Access to the formal legal system – understood in this context as the ability to join a hearing
• Access to a fair and effective hearing – taking into consideration not only whether people are able to join a hearing, but whether they are able to participate and follow proceedings in a meaningful way, as well as whether that hearing proceeds in an effective manner for all concerned, particularly parties
• Access to a decision
• Access to an outcome – both access to a decision and access to an outcome include considerations of whether these are arrived at in a timely manner, and whether decisions are conveyed to parties in a manner that enables them to understand the outcome.^[15]

Court and case combinations included in this research

SCTS oversees an extremely wide range of civil cases. As it would not have been feasible to cover all case types within a single research project, the Scottish Government (in consultation with SCTS) decided to limit the research to four specific case types:

• 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) cases.

These case types were selected to ensure the research included breadth and diversity 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).

Family law actions were among those categories of cases considered most suitable for in-person hearings in the Scottish Civil Justice Council's 2021 consultation on the Rules Covering the Mode of Attendance at Court Hearings, while commercial cases were among those considered most suitable for a hearing where participants attend by electronic means.^[16] The caseloads of both tribunals are concerned with the rights of parties from particularly vulnerable groups: children and young persons in the case of the HEC, and those with ongoing mental health conditions who may be detained and subject to compulsory treatment orders under the Mental Health (Care and Treatment) (Scotland) Act 2003 in the case of the MHTS.

Further detail about the types of cases included within each of these settings is provided at the start of each substantive chapter in this report.

Research methods

The research conducted to inform this report comprised:

• A rapid review of existing evidence relevant to the different elements of Scotland's civil justice system's pandemic response, as relevant 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, aimed at providing a broad picture of professional views and experiences of remote hearings
• Qualitative interviews with parties in family law cases, commercial actions, the MHTS and the HEC since March 2020, exploring how pandemic measures shaped their experience of the process and their access to justice
• Qualitative interviews with professionals, including members of the judiciary (Court of Session judges, sheriffs, tribunal members), clerks of court, legal representatives, and other stakeholders working across the case types covered by the research.

The online survey of professionals was live in September/October 2022 and was disseminated via SCTS and a variety of other professional networks and contacts (including legal newsletters, professional bodies, and contacts identified via the Research Advisory Group). The overall profile of respondents to the survey by professional group and case type is shown in Table 1.1, below. The questionnaire was developed by the research team, with input from the Scottish Government and Research Advisory Group – see Annex B for the full question wording.

Table 1.1: Online survey of professionals – sample profile (by case type)

	Family law	Commer-cial	MHTS	HEC	Total
Members of the judiciary	42	22	2a	0	52
Solicitors/advocates	55	39	45	8	128
Tribunal members	4	2	128	12	136
SCTS staff	32	12	13	5	49
Lay representatives or supporters	11	0	64	1	68
Health and social care professionals	7	0	270	0	270
Total	153	77	530	27	714

Note: The totals of individual columns do not sum to the overall total (714), as the case types were not mutually exclusive – the same respondent may have experience of more than one case type and therefore answered questions about their views on the use of remote hearings in both.

a – all MHTS panel members are judicial members. It is likely that these two respondents are tribunal members who selected judiciary rather than the 'tribunal member' category.

Qualitative interviews were conducted from September 2022 to January 2023 by members of the research team. Flexible topic guides were developed to ensure that similar issues were covered across interviews, while allowing for different experiences and perspectives to be explored (see Annex C). Interviews were primarily conducted by telephone or video interview, although a small number were in person (at the request of interviewees). The profile of qualitative interviewees is shown in Tables 1.2 and 1.3. Interviews with parties were all either individual or paired interviews. Interviews with professionals included a mix of one-to-one and (for Sheriff Court clerks and HEC and MHTS tribunal members) small group interviews.

Table 1.2: Qualitative interviews with parties

	Number of interviewees
Family law parties	15
MHTS partiesa	6
HEC partiesb	7
Commercial parties	2
Total Party Interviewees	30

a – includes family members of detained parties, acting as named persons/supporters, and parties who were previously detained (but were not detained at the time of the interview, and were able to give informed consent to participating in the research)

b – interviewees were primarily parents of young people for whom the HEC hearing was held, as well as one young person who had attended their hearing.

Table 1.2: Qualitative interviews with professionals

Professionals	Number of interviewees
Members of the judiciary (sheriffs and Court of Session judges)a	13
Clerks of court / Tribunal clerksb	8
HEC tribunal members	4
MHTS tribunal members	6
Solicitors / advocates representing parties in commercial actions	7
Solicitors and/or representatives of organisations working with family law partiesc	4
Solicitors and representatives of organisations working with MHTS partiesd	8
Solicitors and representatives of organisations working with HEC parties	3
Total Professional Interviewees	53

a – included sheriffs from all six Sheriffdoms and Court of Session judges with commercial and/or family law experience

b – included Sheriff Court clerks from four Sheriffdoms, clerks to the HEC, and a Court of Session clerk

c – including one solicitor and three interviews with representatives of organisations working with parents as they go through family law cases

d – including two solicitors and six Independent Advocates from four advocacy organisations

Limitations of the research

Any research is subject to limitations and it is important to be clear about these when interpreting and using the findings.

Scope and generalisability

A key limitation on the scope of this research was the decision, taken at the tender stage, to focus on four specific case types. Given the breadth of the civil justice system, limiting the scope of the research was necessary to ensure it was feasible to complete the study within the available time and resources. However, it inevitably has consequences for the wider generalisability of the findings in this report to other kinds of civil case or other tribunal context. This has informed the structure of this report, which examines the impact of pandemic measures within each of the four specific case types separately. The final chapter considers where there is divergence and common ground across these findings and provides an indication of what general conclusions may be drawn about remote hearings or other pandemic measures that might be applicable across other civil court and tribunal contexts.

Existing data and evidence

The start of each chapter on a specific case type includes a brief overview of the number of cases of this type that come before a court or tribunal in Scotland, and a summary of the pandemic measures that applied to the specific court/tribunal and case combinations being considered. Ideally, this would include more detailed consideration of the profile of cases and hearings – for example, the proportion of cases being heard remotely by different modes and the proportion heard in-person pre- and post-March 2020. However, this information was not readily available. There was also relatively little information recorded about the profile of parties – specifically, there is no accurate record of the number of unrepresented parties in civil cases in the Scottish courts. While the report considers, where possible, whether remote hearings are perceived to have impacted differently on party litigants and represented parties (drawing largely on qualitative interviews), we do not have a clear picture of how many party litigants might be impacted by these issues.

Survey sample profile

The views included in this report inevitably reflect the profile of people who took part in the professionals survey and the qualitative research.

On the survey, it is important to note that, as shown in Table 1.1, there were very different levels of response from people with experience of the four case types – ranging from 27 respondents with experience of HEC hearings to 530 with experience of MHTS cases. Given the very different case types reflected in respondents' answers, this report largely presents the survey findings separately for each rather than looking at views across the whole sample. However, caution should be applied to drawing firm conclusions from survey findings where the sample size is small, particularly with respect to the HEC.

There were also very different sample sizes for different professional groups – from 49 members of SCTS staff (largely clerks) to 270 health and social care professionals (who largely responded in relation to the MHTS). Views on remote hearings within case types will reflect the specific mix of professionals with experience of that case type who responded to the survey. For example, views of the MHTS are strongly reflective of the views of health and social care professionals, who accounted for over half of MHTS respondents. However, given the size of sub-groups of professionals within case types, it is not generally possible to analyse differences in the views of different groups of professionals on specific case types (for example, looking at views of members of the judiciary on commercial actions compared with their views on family law).

Sample and interpretation of qualitative interviews

A number of overarching considerations and limitations relating to the qualitative data are worth noting at the outset.

First, the aim in qualitative research is not to achieve a sample that is statistically representative of the wider population, but to identify as much diversity of experience as possible. Overall, 81 participants is a fairly large sample for a qualitative study. However, within this total, the number of participants interviewed with experience of each individual case type was more limited. There are therefore some inevitable limitations to the diversity of the sample of parties and professionals for each case type (discussed further in the introduction to each substantive chapter).

Ideally, the research would have included more interviews with parties, particularly for the MHTS and commercial actions. The research team pursued multiple recruitment routes for parties – including contacts through various organisations working with parties to the different cases, links suggested by the tribunal chairs, and solicitors or other representatives that had worked on these cases. However, identifying and accessing parties who have been through the civil justice system and who are willing and able to participate in research is a challenge.^[17]

With the exception of some areas where reengagement with the civil justice system might be an ongoing occurrence,^[18] most of those using the civil courts and tribunals as parties do so with low frequency or as a one-off experience so that, once an individual has disengaged from the system, they can be very difficult to track or contact for research purposes. Even where contact has been possible, this one-off engagement means that parties might have had little or nothing to compare the post-pandemic experience to, making it difficult for them to reflect on impact.

In the context of this study, while ideally the research would have heard directly from more parties, interviews with organisations working with parties to family law, MHTS and HEC cases (including advocacy and support organisations) did focus primarily on parties' experiences of remote hearings and other pandemic measures.

Timing

This research was commissioned in early 2022, at which point Covid-19 restrictions on public gatherings and physical distancing in public settings had not been fully lifted. This changed over the course of the research project, as did guidance and practice within the courts and tribunals under study. Key developments in guidance and practice within each context are discussed at the start of each substantive chapter, but it is important to keep in mind when reading this report that participants were commenting on a picture that was (and is) still evolving.

Report structure

The remainder of this report is structured as follows:

• Chapter 2 summarises findings from existing research relating to remote hearings and other pandemic measures in Scotland. This chapter focuses on research relevant across civil justice – where there was evidence specific to the four case types, this is covered at the start of the relevant chapter.
• Chapters 3 to 6 present findings on the introduction and perceived impacts of remote hearings and other pandemic measures in each of the four case types covered by this research: commercial actions, family law, MHTS and HEC hearings.
• Chapter 7 discusses key themes from across the different contexts and presents suggestions for improvement, drawing on both suggestions made directly by participants and the issues emerging from this study.

Report conventions

This report draws on findings from various data sources, as described above. Chapters are structured thematically, rather than by method.

Where findings are based on qualitative data, the report avoids the use of quantifying language (including terms such as 'most' or 'a few') as far as possible, since the purpose of qualitative data is to identify the range of views and experiences on an issue, rather than to estimate prevalence.

Anonymised quotes from qualitative interviewees are included to illustrate key points. In order to preserve confidentiality, parties are identified only by a reference number and general description (e.g. MHP01, MHTS patient). Professionals are identified only by their professional group and a reference number.

This work was carried out in accordance with the requirements of the international quality standard for market research, ISO 20252.