Civil justice system - pandemic response: research findings

2. Existing evidence on the impact of remote hearings in civil cases

Key points

• Existing professional surveys and other sources indicated that there were mixed views on the continued use of remote hearings among different legal practitioners, with solicitors being somewhat more positive than advocates.
• Existing sources indicated that support among legal professionals was stronger for remote hearings to be used for non-contentious or procedural matters. Some professionals would oppose the use of remote hearings in any proceedings where parties are present.
• Drawing on professional survey results, among those legal professionals who supported 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 and fewer supporting the continued use of telephone hearings.
• Objections to the continued use of remote hearings were based on a range of grounds, including access to justice, concerns about digital inequalities, changes to the nature and conduct of hearings and to the working methods of legal practitioners.
• Existing evidence showed that the increased use of electronic documents had been widely welcomed by legal practitioners.
• Overall, there was little existing evidence on the impact of remote hearings in civil cases on parties in Scotland prior to the present study. Where it did exist, it was either relayed by legal professionals or confined to specific case types arising from in-house studies such as those conducted by the tribunals covered in this research (see Chapters 5 and 6).
• There was no existing evidence on the impact of remote hearings on court and tribunal staff working in the civil justice system in Scotland and little data on the impact on the judiciary, beyond the Judicial Attitudes Survey which covers judges in both the criminal and civil justice systems.

Introduction

Before embarking on this research, the project team conducted a rapid review of available existing evidence on the impact of remote hearings and other pandemic measures in civil cases. This review was primarily focused on Scotland but also sought out and reviewed evidence from the rest of the UK^[19] and, where directly relevant, looked at international sources for comparative purposes. As the project progressed between the period from February 2022 to March 2023, sources were updated and evidence as it relates to Scotland added. The relevant findings of this review are summarised in this chapter. Where there was prior evidence specific to the case types covered in the current research, this is presented at the start of the relevant chapter.

Evidence on the views and experiences of parties

From the initial review, it was clear that there was a dearth of evidence on the impact of remote hearings and other pandemic measures on the courts and tribunals in Scotland. This remained largely the case by the end of the study, and was particularly true regarding evidence on the experiences of parties as compared with professional groups. The lack of evidence of the impact on parties is likely to be linked to the unprecedented nature of the changes which, in most of the courts and tribunals under consideration, were introduced very quickly. This meant that those involved in administering the system were working at full capacity to put arrangements in place and to ensure as smooth a transition as possible, making it difficult to collect meaningful data simultaneously. At the time of writing, the qualitative data presented in this report was therefore the only targeted research undertaken in Scotland on parties' experiences and perceptions of remote hearings in the civil justice system that the authors had identified (other than some limited targeted research conducted by the tribunals themselves, discussed in chapters 5 and 6).

Early evidence from England and Wales on the impact of pandemic measures on parties^[20] shows that concerns regarding the move online were unsurprisingly focused on issues of access and participation. These included: stress caused by reductions in levels of communication from the court prior to hearings and administrative support available at court; accessibility of technology and other resources necessary to access proceedings online; difficulties for litigants in person^[21] in creating and accessing electronic bundles; and barriers to effective communication between parties and their legal representatives. The impact of these factors is summed up in the conclusion:

"a combination of restricted access to legal advice due to COVID-19 and difficulties with navigating unfamiliar technology alongside unfamiliar legal processes compounded pre-existing practical and emotional barriers to effective participation."^[22]

The HMCTS study^[23] was conducted later in the pandemic and includes users of both the criminal and civil justice systems. The resulting data indicated that some of these early concerns were either not commonly held by public users, or had been alleviated in full or in part as arrangements settled in. 63% of public users (defined as members of the public using the court and tribunal service including appellants, applicants, claimants, defendants and respondents) who had attended a remote hearing were satisfied with the overall experience compared with 56% who attended a hearing in person. Those who joined via video were particularly likely to be satisfied with their overall experience (67%) compared to those who joined via audio (60%). The report notes that:

"Drivers for satisfaction were strong judge moderation, comfort and security of joining from home, less travel time and costs, time off work and childcare needed."^[24]

Evidence on the views and experiences of professionals

Data on professionals' experiences and perceptions of remote hearings and other pandemic measures tell a slightly different story to the (limited) evidence on the impacts on parties. Most of the existing evidence arises from surveys seeking members' views on remote hearings in the Scottish civil justice system conducted by the professional bodies which represent the two branches of the legal profession: the Law Society of Scotland ("LSS 2021", covering a survey undertaken in February / March 2021)^[25] and the Faculty of Advocates ("FoA 2021", which covers two surveys – one conducted in August 2020 and a second in April 2021).^[26] These surveys tell us much about the views of solicitors and/or advocates in early 2021. However, it is important to note that the arrangements themselves and their application to the different courts and tribunals covered in this research have evolved since both surveys were conducted.

Some later supplementary data on the views of professionals can be drawn from two public consultations conducted by the Scottish Civil Justice Council ("SCJC 2022")^[27] and the Scottish Government ("SG 2022").^[28] The Law Society of Scotland and the Faculty of Advocates submitted written responses to SCJC 2022,^[29] which also attracted a high number of individual and organisational responses from legal professionals. SG 2022 is the most recent source of data on views of remote hearings, but is limited by the fact that responses are not disaggregated either between those with experience of civil and criminal justice, or (for individual respondents) between professionals and parties. Of the 130 organisational responses received, 27 were from 'legal / justice' organisations.

Data on the impacts on Scotland's judiciary are mostly limited to the Judicial Attitudes Survey Scotland 2020 which included a small number of targeted questions about how the pandemic had affected judges' working lives. In addition, one of the individual responses to SCJC 2022 was from a judge (identity withheld) and three of the organisational responses^[30] were from judicial organisations.

Further details on these sources can be found in Annex D to this report.

The judiciary

Data on judges' experiences of remote hearings can be drawn from the two most recent rounds of the Judicial Attitudes Survey (JAS). The most recent survey ran from 14 June through the end of August 2022 and the previous one from 27 May to 22 June 2020.^[31] In the 2020 survey, the response rate for salaried judges in Scotland was 79%.^[32] The 2022 survey was extended to cover both fee paid and salaried judges in Scotland and the response rates were 83% for the salaried judges and 41% for the fee-paid judges.^[33] It should be noted that the data makes no distinction between those sitting in the criminal and civil courts, or between members of the judiciary working in courts and in tribunals.^[34]

Although the 2020 survey was not specifically designed with the impacts of the pandemic in mind, several questions asked about judges' experiences of working during the Covid-19 emergency. The survey took place during the very early months of the pandemic but, given that the impacts of Covid-19 measures on judges' working lives are not recorded elsewhere, the survey results are an important source of evidence.

At that early stage of the pandemic, 61% of Scottish judges were somewhat or extremely concerned about the reduction in in-person hearings. Almost three quarters of Scottish respondents (73%) said they were going in to work at their court occasionally in the early months of the pandemic. Under half rated their IT equipment (46%) and internet access (45%) for remote working as either excellent or good. Around a third (31%) said the IT support available to them when working remotely was excellent or good.

In the 2022 survey the judiciary's experiences and perceptions of remote hearings were specifically probed with the addition of some further questions to cover the increase in remote hearings which has continued following the pandemic. Only 26% of salaried judges felt that the increase in remote hearings had been beneficial to their work, whereas 46% of fee-paid judicial office holders felt remote hearings had been beneficial to their work. For those salaried judges who completed the survey, the largest perceived negative effect of remote hearings was on the interactions between parties (72%), quality of advocacy (66%), parties' behaviour during hearings (67%), the ability of others to observe hearings (69%) and the resolution of cases (58%).

When asked to assess the quality of technology in court for remote hearings in JAS 2022, a majority of both salaried judges and fee-paid office holders reported that this was excellent/good or adequate. However, 35% of both salaried and fee-paid judges reported that it was poor/non-existent. Salaried judges reported improvements to the standard of internet access at court since 2016, with 46% rating it as excellent/good, compared with 15% in 2016 and 29% in 2020.

Responses to SCJC 2022 from judicial organisations show that the continued use of remote (video) hearings and electronic communications for procedural matters were largely supported. However, there was wide agreement that video hearings should not become the norm for substantive matters. Referring to the Court of Session, the Senators of the College of Justice argued that complex legal arguments and contested evidence cannot be dealt with as effectively by video hearings which produce barriers to judicial communication, and that the "dignity and solemnity" of court is missing in video hearings:

"The court as a physical place supports the public's acceptance of the legitimacy and authority of the court, and the law itself. In a video conference these essential features are lost."^[35]

The Sheriffs' Association and Summary Sheriffs' Association, although generally in agreement with the proposition in the draft rules that procedural business would be dealt with by remote hearings and substantive matters by in-person hearings, noted that a judge should make the ultimate decision about the appropriate form of hearing. They suggest that this would enable account to be taken of issues of digital poverty, noting that "…it is important that sufficient resources are provided, whatever form a hearing takes, if the quality of access to justice is to be maintained".

Sheriffs principal supported the proposed default for remote procedural hearings and in-person substantive hearings but felt that, where all parties were in agreement that a hearing of whatever type should take place by electronic means, such a request should be accommodated wherever possible and practicable. The presiding sheriff would be best placed to decide on the most suitable form of hearing and there may be particular factors in favour of an in-person proof, for example if the proceedings are likely to be "'high conflict' or lead to prevarication".

Legal professionals

Overall views and experiences of remote hearings

Although not asked to provide a satisfaction rating for remote hearings, 78% of solicitors responding to the LSS survey stated that they would like to continue with them post-pandemic. Positive factors included reductions in travel and waiting time and cost savings. 75% of respondents felt that remote court access was a useful addition to physical court appearances, and 70% that it increased efficiency in court business. Just 11% felt it did not improve the civil justice system. Negative factors^[36] for solicitors included technological issues such as not having the right equipment (9%) or a good internet connection (15%) or appropriate training (19%). 59% reported no technical difficulties.

However, although positive overall, 58% of respondents to LSS 2021 stated that there were inconsistencies in the approach of different courts to remote hearings. These included different time limits for and/or rules on written submissions, the use of different remote platforms,^[37] different arrangements for telephone hearings regarding dialling in / being phoned by the court, and differences in timings with some courts allocating specific times for each hearing and others allocating a fixed time for all hearings on a particular day.

Responses to FoA 2021 show that 88% of advocates had experience of using SCTS' videoconferencing platform for court submissions, and 83% for procedural hearings. Although 91% agreed that remote hearings were a useful addition to court options, 71% found remote hearings worse than in-person hearings. There was a clear preference for video over telephone, which had increased by the second survey in April 2021, probably reflecting greater levels of experience of the videoconferencing platform by that point. Perceived benefits of remote hearings and other electronic measures for advocates were similar to those cited by solicitors: convenience; savings in travel time and costs; improved court processes through the use of electronic documents; reductions in storage requirements; and improvement in data security. In addition to problems with technology, perceived difficulties included: picking up non-verbal cues; engaging with the judge; challenges in managing presentation; and tiredness.

In SCJC 2022, users' experiences of telephone hearings were generally poor,^[38] while video hearings were viewed as providing a significantly lower standard of service for parties in comparison to their experiences of in-person hearings.^[39] The range of problematic issues identified if remote hearings were to continue largely corresponded with the concerns raised in LSS 2021 and FoA 2021.^[40]

The use of remote formats for procedural and substantive hearings

In LSS 2021, 91% of solicitors thought that procedural hearings were working particularly well remotely as they were short, enabling a larger number to be undertaken with faster determination. In contrast, 69% said that proofs and 68% said that evidential hearings did not work well remotely. The main perceived issues related to the character of substantive hearings and issues of participation, including: difficulties in assessing witness credibility and/or reliability remotely; the loss of formality; the lack of opportunity for face to face interaction with other agents, witnesses and the bench; and clients feeling disconnected or disengaged from proceedings.

These aspects were reflected in FoA 2021; advocates viewed substantive matters as more difficult to conduct remotely than procedural because of perceived negative impacts on engaging with the judge(s) and difficulties in picking up on non-verbal cues and dealing with witnesses. Further, when asked whether remote hearings should be the default for procedural business, only 50% of advocates agreed. There was low support among advocates for having remote hearings as default for submissions/argument (19%) or witness evidence in civil cases (4%).

In its response to the SCJC Consultation, the Civil Justice Committee of the Law Society of Scotland noted that the proposed rules did not reflect the "overwhelming opinions expressed" in LSS 2021 and FoA 2021. Of particular concern was that "the starting point for the draft rules is to seek to exclude proofs, evidential hearings, debates and appeals from live hearings in the court buildings."^[41]

The Faculty of Advocates' response to SCJC 2022 acknowledged the importance of retaining the beneficial elements of remote working necessitated by the pandemic. However, similarly to the LSS, the Faculty expressed strong objections to the proposed adoption of remote hearings by default for contentious and substantive matters in the majority of civil cases, arguing that there was no evidence that litigants, judiciary, council, solicitors or the general public wanted this, and that it would create problems with "access to justice, the quality of justice, and further inequality" (at p.1 of the Faculty of Advocates' response). There was, however, a recognition that parties should be able to request remote hearings. The move to a general default of virtual hearings for procedural business was supported, although the view was that this should be confined to video only as telephone hearings provided "no ability to see the participants or screen share documents" (at p.10).

Less than one in five professional individual or organisational respondents to SCJC 2022 supported a general presumption that certain types of cases were suited to in-person and remote hearings in the Court of Session with most taking the view that a general presumption was "too blunt an instrument and the draft rules would strike the wrong balance." The main preference was for a less complex scheme, capable of supporting a more flexible approach by the courts on a case-by-case basis.^[42] The responses to the same question in relation to the Sheriff Courts were remarkably similar.^[43]

Perceived impacts on access to justice for parties^[44]

In LSS 2021, solicitors raised concerns about their clients' ability to engage and participate in remote hearings, including practical difficulties in obtaining clients' instructions (45%) and clients struggling to fully understand and participate (41%).^[45] Meanwhile, 61% of advocates responding to FoA 2021 agreed that remote hearings could, if used appropriately, increase access to justice, but 52% felt that they were less accessible for parties. The perceived impact on individuals' access to justice was primarily linked by advocates to digital literacy and exclusion.

Although 75% of advocates agreed the cost of attendance was lower for parties to remote hearings, 62% agreed that the increased need for written advocacy in place of oral evidence in remote hearings would result in additional costs for parties. It was noted that the impacts resulting from the increased use of written statements were poorly understood and required more research. The use of written statements as an associated impact of the move to remote hearings was also identified by some of those interviewed for the current research.

In its analysis of the findings from FoA 2021, the Faculty highlighted the impact of remote hearings on access to justice as comprising two distinct considerations: the principle of open justice, and the right of the individual to have their dispute determined "fairly, effectively, at a reasonable cost and within a reasonable timeframe".^[46]

Impacts on open justice (public and press accessibility)

The issue of open access was raised by advocates in FoA 2021, with 64% agreeing that remote hearings were less accessible for members of the public. Although the pandemic had justified moving online and thus reducing the transparency of hearings to press and public,^[47] responses to the surveys made it clear that the safeguarding of open justice post-pandemic was viewed by advocates as being of the utmost importance.

Impacts on how legal professionals work

Respondents to FoA 2021 identified differences in carrying out their role online compared to in person which they believed had negative effects, including the loss of the opportunity to 'read the room', and the very different quality and nature of online advocacy. This raised concerns regarding impacts on their professional development and networking opportunities. Particular concerns related to trainee advocates (known as 'devils') and junior members of the Faculty and their ability to benefit from "collegiality, attitudinal and informal learning"^[48] if hearings were to remain remote.

In its response to SCJC 2022, the Faculty of Advocates raised issues around the conduct of remote hearings as compared to in-person, including that interactions with the court could be 'stilted' and that there was a danger that the court could lose control of the proceedings, for example where party litigants are involved or witnesses are uncooperative. It was also noted that there was limited opportunity for discussion between opposing parties. Some advocates had experienced difficulties with taking instructions during remote hearings, alongside practical issues such as lodging documents during a hearing.

Impacts on health and wellbeing^[49]

FoA 2021 included a question on the impact of increased remote working on advocates' mental health. 45% expected that it would make no difference, whilst 44% thought it would worsen and 11% that it would improve their mental health. Fears about the worsening impact on mental health were possibly linked to the fact that 42% had seen their workload increase due to remote working, compared to only 14% who said it had decreased.^[50] However, in its analysis, the Faculty drew wider links with the impact on the role of advocates, noting:

"the overall sense of remoteness causing problems with mental health ought not to be surprising. At its base, the practice of litigation remains about people."^[51]

The future

The responses to SG 2022 highlight some significant differences in the views of organisational and individual respondents on the continued use of remote hearings. While most organisational respondents (81% of those giving a view) supported the permanent or extended use of conducting business by electronic means on the grounds of increased efficiency and reduced delays in the court system, only 16% of individual respondents agreed, citing digital exclusion and concerns about security.^[52] Similarly, just 16% of individuals, compared with 67% of organisations giving a view,^[53] were in favour of extending or making permanent virtual attendance at hearings.

Perceived benefits from extending the measures included the modernisation and improvement of court processes, while perceived disadvantages were similar to those identified in LSS 2021 and FoA 2021, including: digital inequalities; difficulties in assessing witness credibility; perceived negative impacts of parties not being able to see each other; security challenges relating to the use of electronic signatures and the emailing of documents; and communication between parties and their legal representatives. Concerns were raised that virtual attendance could diminish the justice system, as dialling in to a hearing:

"did not convey the same gravitas or seriousness of proceedings as attending in-person and that this was sometimes evident in the poorer behaviour of some attendees."^[54]

If remote hearings were to continue, most individual and organisational respondents agreed that both in-person and online options should be available to allow flexibility and adaptations to different circumstances. Most in the legal and justice sector called for default in-person attendance for civil proofs and jury trials, with less opposition to remote procedural hearings.

Conclusion

The existing evidence provides useful insights – particularly into the views of solicitors and advocates. However, there are significant limitations, both in terms of coverage of different perspectives (there is little data on the views of judges, still less on SCTS staff or on parties) and timing (much of the existing evidence is from early in the pandemic). This takes us onto the findings from the primary research conducted for this report, which aims to help fill these gaps.