Civil justice system - pandemic response: research findings

3. Commercial actions

Key points

• Most professionals working in the commercial courts were positive about remote hearings for procedural business, due to increased flexibility and efficiency savings, with a preference for video over telephone.
• In general, professionals agreed that hybrid hearings were a useful addition to the suite of available options, particularly for expert witnesses, due to time and cost savings.
• Advocates overall were less positive about remote hearings than commercial judges and solicitors, perhaps reflecting the performative nature of their role and the environment in which they work.
• There was general consensus among all professional groups that remote hearings were not appropriate for party litigants.
• Professionals noted that all types of commercial hearing present great difficulties for vulnerable parties and witnesses, although remote technology may increase accessibility for some.
• Several barriers to accessing remote hearings were identified, echoing themes from the existing evidence: digital exclusion and technological barriers; poor quality internet in public buildings; and inadequate levels of technical support during hearings. As well as being time-consuming, these factors could have negative impacts on the effective conduct of a hearing.
• Legal professionals did not generally perceive remote hearings to have had a negative impact on the outcome of cases.
• However, judges observed that fewer cases settled during the pandemic, and that more cases had been heard remotely which arguably should not have come before the court at all.
• Communications between solicitors and advocates and between parties and their legal representatives were found to be more difficult in remote hearings than in person, but as restrictions eased solicitors often created 'satellite courts' which allowed all parties to be together in a unified space.
• The loss of non-verbal communication was perceived to be a significant issue by some solicitors and advocates. However, judges expressed confidence in their ability to assess witness credibility and reliability in a remote context.
• All professional groups expressed concern about the loss of public and press access to remote court hearings.
• Judges and advocates, in particular, felt that their wellbeing had been negatively affected by the move to remote hearings during the pandemic.
• Professionals generally agreed that more extensive digitisation of court processes and documentation was a welcome development.

Overview of commercial actions and remote hearings in the Scottish civil courts

Commercial actions in Scotland

Commercial actions include any transaction or dispute of a commercial or business nature, for instance commercial contracts and leases, professional negligence, partnership disputes, or the international sale and supply of goods and services. Official civil justice statistics classify commercial actions mainly under the rubrics of 'debt' or 'damages' but behind these classifications lie a wide range of legal issues.^[55] Litigation regularly involves banks and insurance companies, and more recently Scottish football teams. A discrete commercial procedure, facilitated by specialist judges, has been in place in the Court of Session since 1994 to allow the court to handle commercial cases with speed and flexibility.

One important innovation in commercial actions was the introduction of preliminary hearings. These hearings are more akin to a chaired discussion between the parties than a formal court hearing (for instance, formal court dress is not worn). The judge is actively involved in discussions, helping to narrow the legal issues and establish points of agreement. This would usually lead to a more formal procedural hearing to focus the issues sufficiently to allow the case to be sent for debate or proof. There are currently four specialist commercial judges in the Court of Session, who oversee the progress of a case from a preliminary or procedural hearing (references to procedural hearings in this chapter include both) through to a debate or proof.

Since 2001 Sheriff Courts have been able to adopt a modified form of the commercial procedure^[56] overseen by specialist commercial sheriffs, in which the initial case management conference is the equivalent of a preliminary hearing in the Court of Session. It is a decision for sheriffs principal whether to adopt the commercial procedure and not every Sheriffdom does so. Most of the larger Sheriff Courts in Scotland now have commercial courts, the latest two in Hamilton and Airdrie were recently established in November 2022.^[57]

Table 3.1 Volume of commercial business

	2020-21	2021-22
Court of Session
Evidential	242	174
Procedural	715	607
Sheriff Courts
Evidential	41	64
Procedural	700	805

Data provided by SCTS^[58] shows that in the most recent figures for 2021-22 there were 174 evidential and 607 procedural hearings in the Court of Session, and 64 evidential and 805 procedural hearings in the Sheriff Courts. The volume of commercial hearings is broadly similar in both courts although it might be anticipated that hearings are likely to increase in the Sheriff Courts as new commercial courts are established.

Remote hearings in the Court of Session

Prior to the pandemic all commercial hearings in the Court of Session took place in person. After lockdown restrictions were introduced in March 2020 teleconference calls, which were already available across the Court of Session estate,^[59] were used briefly for procedural hearings. Videoconferencing technology was introduced and adopted swiftly and the first commercial proof via video was heard in June 2020. Thereafter, the videoconferencing platform was routinely used throughout the pandemic for commercial business until a return to court was permitted.

Remote procedural hearings were conducted using what was described as "the clerk's personal room", with all hearings separately scheduled in specific time slots, mirroring in-person hearings. For substantive business the clerk would host a practice session in the videoconferencing platform's virtual waiting room in order to check that technology was working well for all participants, before moving everyone into a 'live' session where the judge was also present. Solicitors pointed out that only the judge and counsel are visible on screen, while others in attendance (for instance solicitors, parties, court staff) are 'muted' with cameras off, and witnesses appear on screen when called.

From 25 April 2022, SCTS guidance outlines presumptions for the Outer House, including the Commercial Court, to the effect that procedural hearings continue to use videoconferencing software and substantive hearings (including proofs and debates) return to the physical courtroom.^[60] Currently these presumptions are being applied for commercial actions and while it is open to parties to move away from the default position, as of January 2023 "there are no examples yet of parties wanting to change".

Remote hearings in Sheriff Courts

Sheriff Courts present a more mixed picture prior to and during the pandemic, and practice varies considerably between and within Sheriffdoms. Prior to the pandemic teleconferencing was used regularly for case management hearings in a number of commercial courts, for instance in Glasgow, Edinburgh and Aberdeen.^[61] The general picture described by court staff and legal professionals interviewed for this study suggests video hearings had been used on very rare occasions. For instance, one solicitor had experience of a Sheriff Court accommodating an international witness by video; another had used a very poor quality video link for Stornoway Sheriff Court.

In the early period of the pandemic, commercial hearings in the Sheriff Courts moved initially to telephone hearings (from around June/July 2020), combined with doing more business administratively (i.e. on the basis of written submissions). Thereafter it has been challenging to produce an accurate timeline for the adoption of video hearings and the use of different technologies in different Sheriffdoms. Some courts moved quickly to video hearings, others continued to do as much in person as was possible with physical distancing in place, and some used teleconferencing routinely as an alternative to video.

The SCTS Change and Digital Innovation Unit indicated that the videoconferencing platform was rolled out across the whole court estate at the same time so that every Sheriff Court ought to have had access as early as the Court of Session did. Sheriff clerks were not certain when video hearings had routinely replaced telephone, but indicated it was later in 2020 than in the Court of Session. From discussion with clerks and members of the judiciary it seems that video hearings became an option in some locations mid-2020 (for instance Edinburgh Sheriff Court), and in some courts "became more frequent, even the norm" in the last three months of 2020. Few of the sheriffs interviewed had experience of conducting video hearings until late 2020 and some not until 2021.

Even after video hearings became available some Sheriff Courts continued to use teleconferencing to a significant extent.^[62] Glasgow and Edinburgh Sheriff Courts have the highest volume of civil business and between them accounted for 31% of cases initiated in the Sheriff Courts and 27% of cases disposed of in the year 2021-22.^[63] Detailed figures are not available specifically for commercial business but it would be reasonable to assume they also conduct the highest volume of commercial hearings. Edinburgh Sheriff Court has continued to use teleconferencing for all commercial procedural hearings throughout the pandemic and up to the present (as of March 2023). Glasgow's Commercial Court has used teleconferencing for procedural hearings for many years, including for contentious motions.^[64] According to a commercial sheriff it was therefore "a perfectly natural progression" after lockdown to move virtually all commercial business (including debates) to telephone hearings. Only commercial proofs were excluded until a solution could be found.

A commercial sheriff drew our attention to one particular case in which the court came under "sustained pressure" from solicitors to conduct a remote proof, thereby accelerating the introduction of videoconferencing technology in Glasgow Sheriff Court.^[65] The sheriff noted that at that point, in the latter part of 2020, the court had no facility to conduct a video hearing. Arrangements were then rapidly put in place and thereafter video hearings were used in a limited way for some proofs and debates. As of late 2022, a commercial sheriff indicated that video hearings, while they had been discussed and offered to parties as an option in appropriate cases, had not been used in the previous six months and that the majority of commercial business in Glasgow had returned to teleconferencing.

According to solicitors most Sheriff Courts conduct 'bulk courts' (replicating a physical court) for commercial procedural business whereby all parties are given the same video hearing link with a running order of cases and turn on their cameras and microphones when their case is called. The clerk checks that everyone is present before letting the sheriff into the meeting. Other Sheriff Courts use individual timed slots for each hearing. For telephone hearings there are two methods of joining: either the sheriff or sheriff clerk calls the parties in an allotted time slot or, alternatively, agents are given a number and a time slot to dial into the conference call, with a passcode.

At the time of conducting interviews for this study, there appears to be no consistent approach across Scotland. Guidance setting out similar presumptions as for the Court of Session was issued by sheriffs principal on 19 July 2022.^[66] This states that, unless otherwise agreed, "all procedural business and debates" will be conducted remotely and "proofs and other substantive hearings" will return to in-person hearings. At the time this research was conducted, some Sheriff Courts were applying these presumptions, but the situation was more 'fluid' for commercial cases, according to one sheriff. Some sheriffs were choosing to conduct almost all commercial business using a videoconferencing platform, even proofs, unless there was a specific request for an in-person hearing. Others had returned to the courtroom for all business, including procedural hearings. One advocate described the situation in Sheriff Courts as "very à la carte" with a wide variety of practices depending on the preference of individual sheriffs.

Overall attitudes to remote hearings in commercial actions

Between October 2022 and February 2023 the research team conducted interviews with professionals and parties who had experienced a remote hearing. Sixteen interviews were conducted with legal professionals in the commercial field: eight judges (five of the six Sheriffdoms were represented as well as the Court of Session), three advocates and four solicitors. All of these interviewees had many years of experience in the Court of Session or Sheriff Courts as solicitors, advocates or judges, sometimes over the course of their careers in more than one of those roles. We spoke to both male and female professionals located in both urban and rural settings. In addition, a group interview was conducted with sheriff clerks representing four Sheriffdoms.

Considerable efforts were made to include the voices of commercial litigants: a number of solicitors and advocates disseminated information about the project and SCTS sent invitations directly to parties recently involved in a remote commercial hearing. The response to those efforts was disappointingly low, but the researchers were able to interview two commercial parties. One had experience of a proof conducted via videoconferencing in the Court of Session; the other was an insurance executive with experience of attending many commercial actions prior to and during the pandemic, mostly in the Court of Session. We were unable to speak with parties who had experience of remote commercial hearings in the Sheriff Courts.

To date, there does not appear to have been any other research (apart from the current study) specifically about remote commercial hearings.^[67] A specific section on relevant literature is therefore omitted from this chapter.

Reflecting findings from earlier surveys of professionals, discussed in chapter 2, the professionals survey found a clear difference in attitudes to the use of remote technology for evidential and procedural commercial hearings, although compared with family law, the divide was perhaps slightly narrower – 79% of respondents thought video hearings worked very or fairly well for commercial procedural hearings in Sheriff Courts, while 40% felt they worked well for evidential hearings (compared with 81%/31% for family law) (see Annex A, Table A.1b). Views on remote hearings were similar among the smaller group of respondents with experience of commercial hearings in the Court of Session.

The dominant view of remote hearings among commercial professionals interviewed for this study was also largely positive in relation to procedural hearings (which constitute the vast majority of hearings in commercial actions) in terms of both flexibility and efficiency. However, the picture was more complex with respect to substantive business. Judges in both Court of Session and Sheriff Courts generally welcomed a return to the courtroom for substantive business, although they felt remote 'hybrid' hearings remained a useful option, particularly for expert witnesses. At the same time, as discussed above, some sheriffs have continued to conduct all commercial business via videoconferencing and felt most solicitors appearing before them were content to do so. Advocates interviewed had more reservations about remote hearings, perhaps reflecting the nature of the role they perform in the court system. There was general consensus across all groups that remote hearings were not appropriate for party litigants. Both commercial parties interviewed expressed negative views about their experience of a substantive remote hearing but acknowledged remote hearings could be useful for earlier procedural stages. The reasons underlying these views are explored in greater detail below.

Telephone vs video hearings

In the professionals survey there was a preference among commercial respondents for video over telephone as the mode most likely to work well – 79% vs 56% for Sheriff Court procedural cases. However, qualitative interviews indicated a marked contrast between the views of sheriffs who conduct telephone hearings and solicitors who experience them. Sheriffs in Edinburgh and Glasgow had positive views about the benefits of teleconferencing: it was perceived to be quicker and easier than video hearings and there were fewer technical problems (for instance, a telephone line is a more stable connection than broadband, and there are no issues with participants dropping out). While there was no resistance to using video hearings in principle, teleconferencing was seen as a better solution for procedural hearings and, in the case of Glasgow, even for more complex hearings such as contentious motions and debates. These views may also reflect greater familiarity with a long-standing procedure, as one sheriff acknowledged.

Sheriff Court clerks had mixed views on the use of telephone or video for procedural business, which generally appeared to reflect the views of the sheriffs they worked with. One thought telephone was preferrable to video, as sheriffs in their area were happier using it and it had less impact on clerks' workload as sheriffs ran telephone hearings themselves from chambers. However, others felt sheriffs in their areas were less happy with telephone hearings, even for procedural business, although they recognised that the ability to dial in by telephone was a useful back-up if participants experienced problems with the videoconferencing platform.

Solicitors with experience of telephone hearings in the Sheriff Courts felt somewhat less positive about them than sheriffs. Some expressed puzzlement at why some courts have retained them:

"I don't really see why we would go back to having a slightly lesser version by telephone." (Solicitor, ProfC3)

They described difficulties with people talking over one another (perceived to happen frequently when there are no visual cues) and not being able to pick up non-verbal cues, for instance, when someone might want to interrupt, or when the bench wants to say something. Some solicitors also said it was anxiety-inducing waiting for a sheriff to call and, for the alternative method of dialling in, some had experience of appearing in someone else's hearing if it was running behind time.

One advocate was particularly critical of Glasgow's Commercial Court:

"Glasgow has resolutely refused to have anything to do with [SCTS' videoconferencing platform], even if perversely everyone wants them to be back by [SCTS' videoconferencing platform]." (Advocate, ProfC4)

Some solicitors expressed the view that commercial sheriffs in Glasgow were not resistant to video hearings but that there were wider training and resourcing issues that prevented the use of video technology. It is perhaps not surprising that the volume of business in Scotland's busiest court may act as a deterrent to technological experimentation. Sheriff clerks perceived that video hearings took more time both to set up and to conduct the hearing itself, in comparison with a more familiar telephone hearing. A commercial sheriff was of the view that video hearings would become a more frequent request from "tech savvy" solicitors and supported that direction of travel.

Hybrid hearings

Even professionals who were on balance negative about remote hearings acknowledged that retaining the possibility of hybrid hearings would be a useful additional format, particularly for expert witnesses: they save time, and avoid lengthy travel and court waiting times. In one recent Court of Session case witnesses were able to give evidence remotely from a number of different locations including Peru, Malta, Zimbabwe and the south of England.

"Broadly speaking, I think that's one of the benefits of the pandemic. We've now got that hybrid flexibility." (Court of Session judge, ProfJ10)

Some judges felt that the benefits of appearing remotely would not usually apply to non-professional witnesses, however, and that it would be preferable to have them in court; nor would it be appropriate if issues of credibility and reliability were central to the case. Further caveats were expressed that taking evidence in a hybrid format depends on good quality technology, and that it remains a challenge to share documents via the videoconferencing platform if they are lengthy and complex. One sheriff felt that a hybrid option would be useful for commercial hearings, but commented that a general lack of confidence in the technology had prevented their introduction:

"you don't want it to fail if you've got an expensive witness who's about to join." (Sheriff, ProfJ3)

One commercial party was more negative about their experience of hybrid hearings on grounds of having a level playing field between the two sides in a case. A solicitor expressed frustration that the option of a hybrid hearing depended on individual sheriffs, having been refused this option in a recent case where the witness was in Pakistan.

Perceived impacts of remote hearings on access to justice

The factors at play in commercial actions appear at face value to be somewhat different from those experienced in the other case types examined in this research. It might be conjectured that the image of well-resourced litigants represented by technically proficient law firms is one of the reasons why commercial actions were considered suitable for remote hearings in the Scottish Civil Justice Council's recent consultation, both for procedural hearings and even those that "involve the appearance of witnesses".^[68] However, judges in particular were keen to point out that this is not always the case. Commercial Courts also deal with unrepresented and vulnerable parties. Similarly, while commercial actions may not appear to deal with such personal matters as, say, family cases, parties may stand to lose their business and potentially their means of making a living, which is clearly distressing.

A major focus of this research is an assessment of the extent to which remote hearings have a positive or negative impact on access to justice for court users. As discussed in chapter 1, the definition of access to justice adopted for the purposes of analysis has four elements:^[69] access to the formal legal system; access to a fair and effective hearing; access to a decision; and access to an outcome. Many of the themes which arose in interviews relate to how easy it is to access the legal system remotely and whether or not hearings are fair and effective. However, some themes cannot be easily categorised, or may fit in more than one of these categories: for example technical barriers may prevent access to the legal system and are also likely to impact on the conduct of the hearing itself, the combined effect of which may ultimately impact on the outcome of a case. Nevertheless while there is some artificiality in the categorisation, it is a helpful way of examining the information that legal professionals, court staff and commercial parties provided about their own experiences.

Access to the formal legal system and to a fair and effective hearing

Technology, training and support

Many of the perceived barriers to accessing a remote hearing related to digital exclusion and technological issues. In the professionals survey those with experience of commercial cases said that technical barriers to joining hearings was the most common difficulty parties faced accessing and participating in remote hearings – 70% of commercial respondents said it was at least fairly common for parties to experience technical issues joining video hearings, though this was lower (40%) for telephone hearings (see Annex A, Table A.2b).

The most common and almost universally negative views about video hearings related to internet connection problems. Professionals described situations where witnesses had to log out and try reconnecting, or where they had to disconnect and call in to the hearing by audio only because the connection was not strong enough for video. One sheriff had experience of not being able to speak to all parties at the same time:

"I had to speak to two sides separately because they were unable to both connect at same time, so I put one side on pause while I spoke to the other side." (Sheriff, ProfJ9)

In addition to preventing participants from joining in the first instance, inadequate technology can also be a barrier to the effective conduct of a hearing. Judges emphasised many times that the success or failure of a remote hearing depends on having high quality, stable broadband. Lack of connectivity can cause screens to freeze or can cause delays (drop-out) in responding to a question. These difficulties were viewed as having potentially significant consequences in a court hearing:

"It's not uncommon for there to be a slight time lag, just maybe a second or two but there are a number of consequences of that: one is it's just enough that you're conscious of it, so it's therefore just enough to be slightly distracting, both probably for the speaker and for the listener; it means that sometimes, particularly where there is evidence being led, the risk of people talking across each other happens and for the decision maker that's difficult because you then aren't getting everything that people are saying." (Sheriff, ProfJ6)

Serious consequences may ensue when lack of connectivity causes someone to drop out of a hearing entirely. One judge gave an example where an advocate left the hearing, leaving the judge unsure whether it was intentional. A commercial party had attended a remote hearing where a participant experienced intermittent loss of signal and also "the judge's signal dropped out a few times, and the hearing just continued without him being there." A lack of good quality broadband was also an issue for commercial hearings because of the common practice of viewing large and complex documents by screen-sharing.

A number of judges were frank in their assessment of the poor quality of broadband in many public buildings (for instance, prisons and police stations) and throughout the court estate. Although things had reportedly improved since the early stages of the pandemic, there was nonetheless a good deal of frustration among legal professionals at how often technology remained an issue in remote hearings.

In the survey of professionals lack of access to a suitable device was less likely to be seen as a common issue for commercial parties compared with family parties (29% said it was at least fairly common for commercial parties not to be able to join due to lack of a suitable device, compared with 46% for family cases – see Annex A, Tables A.2a and A2.b).^[70] This may reflect the different profile of commercial clients, many of whom are well resourced and most legally represented. Commercial professionals did, however, give examples where the lack of an adequate digital device had been an issue in relation to witness evidence, for instance where a witness's face had been partly obscured because they were using a smart phone screen or, more frequently, where using a mobile phone meant that a witness had been unable to see other participants in the hearing or to view electronic documents. In the professionals survey 38% felt parties in commercial hearings commonly had difficulties reading documents on screen (Annex A, Table A.2b).

Members of the judiciary observed that very little IT support was available when things went technically wrong in a hearing beyond what clerks were able to offer, and felt that having support in court buildings would make a significant difference:

"That's not their [clerks'] fault, it's not their job, but they're being called upon to manage the immediate crisis in the courtroom when the tech is not working and I'm not convinced that the resources for supporting them are as good as they could be." (Sheriff, ProfJ6)

Clerks themselves reported receiving some training on how to use the videoconferencing platform from the SCTS training team (the Education and Learning Unit). However, they did not feel this fully equipped them to help other people, as they were only familiar with how it worked from their perspective, as the meeting organiser:

"We didn't know what other people were seeing, solicitors or participants. … from my side I know what to do but I didn't know what solicitors had to do or how they logged on." (Sheriff clerk)

The SCTS Change and Digital Innovation Unit indicated that (unlike in England and Wales) there was a limited assisted digital programme in Scotland and that support to participants in hearings was to be delivered via clerks. They suggested that specialist support officers should have been available for every hearing if the clerk flagged that a remote hearing was taking place. However, it was not clear that clerks were aware of the possibility of additional technical support, and none of the judges interviewed mentioned this facility.

One sheriff, who felt that remote hearings did not serve the interests of justice and had conducted only a few video hearings of any kind throughout the pandemic, noted that the lack of a stable internet connection played a large part in this assessment, as well as access to justice concerns more widely.

Potentially vulnerable participants and party litigants

Commercial professionals' views on which parties might find it easier to access hearings remotely than face-to-face were broadly similar to those of family law professionals who responded to the survey conducted for this study. Unrepresented adults and adults with learning disabilities in particular were seen as likely to find face-to-face hearings easier than either video or telephone (62% felt unrepresented adults would find face-to-face easier than video, and the same proportion felt they would find it easier than telephone). Views on other groups were more finely balanced. However, where commercial professionals drew a distinction they tended to say face-to-face would be easier for parties. One exception was wheelchair users; commercial professionals felt that wheelchair users might find remote hearings (by video or telephone) easier than face-to-face (see Annex A, Tables A.3b and A.4b).

In interviews with professionals, there was a clear view that for vulnerable parties and witnesses both in-person and remote court hearings are very difficult. It was also suggested that there may in fact be advantages for some parties in using remote technology. Judges in particular recognised that remote hearings ought to provide an accessible way to come to court, noting that for some vulnerable parties solicitors sometimes offer their offices as a 'satellite court', which is seen as a good alternative. However this was not always possible, and clearly would not apply to unrepresented parties.

Professional interviewees reported that party litigants are not frequently encountered in the commercial context^[71] and where they are "they tend to be relatively sophisticated": for instance, company directors wishing to appear as lay representatives for the company; or litigants who wish to continue their action against legal advice or where their representative has withdrawn. However, professionals acknowledged that remote hearings were challenging for party litigants and raised questions about effective access to the legal system. One sheriff gave an example where a party litigant's technology had prevented him from joining a hearing, with potentially serious consequences:

"They had tried to dial in to a hearing but the court was unaware of that and decree in absentia had been granted. It was subsequently appealed, and rightly so, but shouldn't ever have happened." (Sheriff, ProfJ5)

Judges had made efforts to accommodate unrepresented parties in particular cases by putting additional measures in place to enable more effective participation: for instance, ensuring documents were delivered in person, adjusting the time of the hearing, and insisting the other side articulate legal arguments in advance. Another had ordered a hearing involving a party litigant to take place in person early in the pandemic "for access to justice reasons" and to ensure equality of arms.

Communication difficulties: 'the tug of the gown'

In the survey many commercial professionals felt it was at least fairly common for parties to experience difficulties speaking to their representative during a remote hearing (57% said this was very or fairly common in video hearings, slightly lower at 41% for telephone hearings – Annex A, Table A.2b). It was also a common theme in interviews with professionals and commercial parties that their internal communications in a remote hearing were much more difficult.

Communications between solicitors and counsel, often quick corrections or instructions in relation to particular legal issues, have to be done digitally in a remote hearing. Indeed, the role of junior solicitors and advocates in a remote hearing was reported to involve setting up WhatsApp or text communications between participants and to monitor incoming messages or send questions during the hearing:

"The tug of the gown so to speak, can't really happen online. You have to say 'My Lord or Lady, could I have a moment while I take instructions?' and that's physically, you know, getting a text or WhatsApp message from the solicitor - you can't lay your head back and somebody whisper in your ear." (Advocate, ProfC1)

The problem of internal communication was perceived to be worse in the Court of Session where solicitors have their cameras off and are unable to indicate if they wish to communicate with counsel. Solicitors suggested that there should be a facility to have a short discussion if needed, for example, in response to a question from the bench, without needing an adjournment.

Both commercial parties felt that not being able to communicate effectively with their legal representatives had been both frustrating and detrimental to the conduct of their cases. One party had been part of a WhatsApp group with their solicitor and counsel during the hearing but compared it unfavourably with the subsequent appeal hearing which was in-person and they could have a chat at lunchtime. Solicitors felt that remote hearings could lead to clients feeling "isolated" and "disengaged from the process":

"I was dealing with the person that was the CFO [Chief Financial Officer], and they knew the case inside out at that stage and they sat in on the [video hearing]. But you miss the social interaction with clients – the morning recess for the coffee break, 'How do you think it's going?' and the chat about it." (Solicitor, ProfC5)

Judges also felt that something of the "gentle ribbing" of the courtroom was not possible online, affecting the relationship between agents and sheriffs:

"I can say 'Mr. X, you know that that's not the law, you can't do that, that's not competent, is that really wise?'. All of that is lost on screen." (Sheriff, ProfJ9)

Some of these are perhaps subtle and immeasurable interactions but professionals clearly felt they were missing from the online environment to the detriment of all participants. As meeting in person became possible again, commercial professionals said that often all the professionals, including trainees, junior counsel and perhaps even the client, meet in the solicitor's office in order to try and create "a single unified physical space where people are able to interact".

Non-verbal communication: 'law as poker'

The commercial party who was an insurance executive had a unique perspective on the 'tactics' of the courtroom, which they felt were adversely impacted by remote hearings. They strongly felt that it was crucial to have everyone in the same room in order to be able to pick up "small nuances and non-verbal communication". Even a glance at the solicitor could convey whether the other side was reaching the end point of negotiations:

"there's a point when it stops being law and it becomes poker. And I don't know whether virtual poker or computer poker might work, but there's an awful lot that you have to see the players' faces." (Commercial Party 2)

Witness credibility

One oft-cited concern in the literature, as discussed in chapter 2 of this report, is the question of whether witness evidence can be assessed adequately in a remote hearing. Some advocates and solicitors interviewed for this study shared this concern, pointing out that the nature of the case would play a large part in assessing credibility. For instance, if the essence of the case was that somebody had to be lying, questions of credibility would be central to the hearing:

"It really needed to have a sheriff listen to just how unfeasible one party's position was and to read the body language…. Their evidence was incompatible. It was the sort of thing that I don't think could ever be done other than an in-person hearing." (Solicitor, ProfC7)

On the other hand, it was pointed out that video evidence where there are even small time delays could give a false impression and on a subliminal level people may think the witness is calculating or lying.

However, judges interviewed for this study largely disagreed with the view that credibility and reliability were more difficult to assess in a remote hearing than in person (with the exception of one sheriff who felt strongly that they were). Some felt there may even be advantages, for instance, the witness's face is closer than in the courtroom, and the judge is better able to see facial expressions and reactions. Moreover, judges pushed back on the notion that assessment of witness evidence should primarily be about their demeanour or facial expressions. They made the point that psychologists would suggest that behaviours (or 'tropes' as one judge put it), including taking too long to answer or avoiding eye contact, are not reliable indicators of whether someone is lying. The predominant view among judges interviewed for this study was that in general they were able to assess credibility and reliability in a remote format in most commercial hearings because their assessment of evidence was a more rounded process:

"In most cases credibility of a witness is not likely to be determinative in a commercial case … There are so many other markers - you've got the contractual context, the evidence of other parties, conduct that's consistent or inconsistent, whether there is an ulterior commercial purpose, and so on that I didn't myself find difficulty in making really hard determinations about credibility." (Court of Session judge, ProfJ13)

Access to a decision and to an outcome

Legal professionals did not generally perceive remote hearings to have had a negative impact on the outcome of commercial actions per se, particularly not on the judge's ultimate decision. However, there were other aspects of working in a virtual environment which were seen as affecting the progress of cases and perhaps the number of cases coming before the courts for a decision.

Narrowing the legal issues: 'oiling the machine'

All groups of professionals were of the view that remote hearings are not sympathetic to the efficient running of cases. Advocates felt that the fact of not physically being in the same building had led to a reduction in interactions between counsel, often with detrimental effects:

"They would very often, if not invariably, have a chat try and work out if issues could be dealt with informally by agreement or without having to have them determined by the court, and that's what I would describe as 'oiling the machine' - that made the machine work more efficiently and resulted in fewer arguments having to be taken before the court, and probably less time being taken before the court." (Advocate, ProfC2)

Both advocates and solicitors clearly regarded these soft skills of relationship-building and negotiation as integral to their role, part of the legal process and part of what clients were paying for.

Settlement of cases

Some judges interviewed for this study observed that fewer cases settled during the pandemic, and thought that some cases had been heard remotely which should not have come before the court at all. Detailed court data on settlement rates is not publicly available. However, some judges ascribed it to the negative impact of remote hearings on the usual communication channels, particularly for advocates:

"The lack of informal communication meant that more cases ran, even those where you could see it was like a slow motion car crash, because structures precluded settlement." (Court of Session judge, ProfJ13)

Some judges were unsympathetic to the difficulties of achieving settlement in a remote context, taking the view that negotiations ought to take place long before the parties arrive in court and not on the day of the hearing. Solicitors were also aware of this change, noting that their practice had changed as a result:

"You lose the door of the court type settlement, at the last minute pacing the Hall. You have to be more organised about it, which is perhaps a good thing, and have settlement discussions earlier." (Solicitor, ProfC5)

One commercial party had an interesting additional perspective on "not being in the room". They were clear that from an insurance company's point of view the goal is always to settle, and many of the tactics employed in court are non-verbal communications designed to lead to that outcome. This party strongly believed that there was more chance of settlement in an in-person hearing:

"If a system gets developed that stops the parties getting together, then that is an obstacle towards resolution and that will always just increase costs." (Commercial Party 2)

The question of digital skills may also have an impact on the outcome of a case. One commercial party had experienced a remote proof in the Court of Session and believed the case had been prejudiced because their expert witness had not been digitally confident or technologically skilled. As a result when giving evidence he became "flustered" and, they felt, was thrown by technology, unable to follow the documentation and faltering in expressing himself. This contrasted with the opposing expert witness who was "slick and savvy" and clearly used to presenting online. This party, rightly or wrongly, felt that the judge had been unable to make that distinction and that the result might have been different in a physical courtroom. Comfort with technology may lead to different criteria in the selection of expert witnesses in the future.

Other perceived impacts of remote hearings

Some themes emerged in interviews which broadly relate to the impact of remote hearings on the ability of legal professionals to carry out their role effectively. These may appear relevant only to legal 'insiders', but their impact on judges, advocates and solicitors is significant enough ultimately to have an impact on the conduct of hearings and perhaps even the outcome for litigants. Themes that emerged from interviews centred on training and support for professionals and the broader effects of remote hearings on the authority of the court itself.

Authority of the Court

Some of the issues raised in discussion with commercial professionals related broadly to the proper functioning of the legal system itself and to the rule of law. Many were reflective about the impacts of remote hearings on the proper functioning of the courts, not in a procedural sense but as the 'place' where justice is done and must be seen to be done.^[72] The concerns that emerged related predominantly to a perceived loss of the court's authority. A number of commercial professionals were concerned that the sense of formality and solemnity involved in a court hearing is lost in the virtual world:

"Commercial cases can also be life changing, even if less dramatic than criminal - the vindication of your rights. And maybe that's the point of ceremony and the wigs and gowns and so on, that this is not an elevated form of entertainment on a par with other things you might be clicking through on the screen." (Court of Session judge, ProfJ13)

Many professionals gave colourful examples of witness demeanour that was deemed inappropriate for a court hearing including overly informal dress, inappropriate language and tone to address the court, and unsuitable locations from which to give evidence:

"I have seen the inside of too many people's bedrooms, frankly, and people giving evidence from the driving seat of their vans. I have had people thanking me and saying 'cheerio mate' as their evidence finishes." (Sheriff, ProfJ6 )

Some were more relaxed about witness behaviour and felt it was better to hear their evidence than not at all, one judge taking the view that it may even make witnesses less inhibited and "a little bit more forthcoming". Others felt strongly that the "authority of the rule of law" was not a matter of personal preference, but that it reinforced the seriousness of proceedings for those coming before the court about potentially life-changing matters.

One further issue for commercial judges was the sense that they had little control over a witness's remote environment, for instance whether they were alone, or potentially being coached. Furthermore, and in stark contrast to the usual powers of an in-person court, they had few sanctions to compel witnesses to comply with the court's orders:

"But we have a difficulty with the person who's sitting at home... I have made baseless threats about a policeman coming round to your house and things like that, but the bottom line is I haven't got any power to actually do that." (Sheriff, ProfJ9)

Training and support

The professionals survey conducted for this study indicated relatively high levels of confidence in their own technical skills – 81% said they were very or fairly confident they had the technical skills to join and participate in video hearings, 97% said the same for telephone hearings (Annex A, Table A.13). However, the qualitative interviews with legal professionals suggested that not all professionals were digitally confident or proficient, which could have a significant impact.

One judge gave an example of a senior solicitor who "didn't know the difference between his volume and his camera" and had wanted to delay the hearing as a result. Across members of the judiciary (and clerks), those who were already familiar with computers and technology in general felt comfortable in the new digital environment, while others found it much more challenging and would have welcomed better training and support. Judges indicated that they themselves had not been offered any formal training either on the videoconferencing platform or more generally on conducting remote hearings, and many would have welcomed it. There was a sense that everyone was "making their own way", trying to create new rules and procedures that would make remote hearings work. In some Sheriffdoms, sheriffs had met as a group to try to invent new systems and ways of working, and individual judges had drafted their own guidance for witnesses (a standard style is now available). However, there was a perceived lack of system-wide guidance.

Impact on transparency

'Transparency' of proceedings is largely understood to mean 'open justice' – that is, the principle that court proceedings are conducted in public and that members of the public and the press may attend any court hearing and witness justice in action, should they choose to do so. In the survey, commercial professionals were more likely to say it was easier for the public to attend hearings face-to-face than remotely: 46% felt it would be easier for the public to attend in person than by video, compared with 20% who thought video was more accessible (8% felt there was no difference and 26% were unsure – see Annex A, Table A.5). Responses were similar for telephone hearings.

The loss of automatic public and press access to court hearings was a significant concern among all groups of professionals, particularly for the judiciary. The unanimous view was that the public gallery is an essential element of the justice system, open justice being "an aspect of the rule of law in a democracy".^[73] Some professionals pointed out that this may be a somewhat theoretical concern with respect to the commercial courts, as they do not generally attract much public interest (with the notable exception of hearings concerning football teams). At the same time, as a matter of principle it was felt to be of cardinal importance.

In contrast to the perceived ease of attending court in person, all groups of legal professionals observed that there are a number of obstacles that a member of the public or press would need to overcome in order to join a remote hearing. The procedure to request access at the time of writing was by phoning or emailing clerks of court for a link to the hearing, although where courts operate a system of links for individual hearings it was recognised that it would be an onerous process to attend more than one. For some Sheriff Courts, public access to court staff was perceived to be limited, attributed in part to resourcing issues:

"At the moment there is really very limited public access to the clerks. If they're lucky, they can send an email which goes into a general email box and might be answered in a few weeks". (Sheriff, ProfJ3)

Clerks also raised the fact that public access was more difficult for remote hearings and noted that video hearings were not publicised on their website as "open court". Exceptions had been made for cases deemed to be of significant public and media interest where joining details had been posted on the courts' website. For instance, in an early video hearing involving relegation decisions taken by the Scottish Professional Football League, the presiding judge was aware of over 900 people listening in by telephone. Legal professionals also provided examples where audio access had been requested and granted in particular cases.

Solicitors were concerned that trainee solicitors had also encountered difficulties attending video hearings, for instance if they needed to watch a case for a client who may have an interest. It was described as being "like pulling teeth" to get information about the timing of hearings with a video link. Some solicitors (and advocates) felt that being unable to attend court in person was a significant barrier to learning for new members of the profession.

A slightly different issue was raised by a commercial party, who felt uncomfortable that the names of attendees were made public in a remote hearing. In the past they had on occasion "slipped into the public gallery" of a court to take stock of a case. They suggested that providing for the possibility of "anonymised attendance in an additional gallery would mirror the real life version".

Impact on efficiency

In the survey, commercial professionals were divided on whether remote hearings save time overall (see Annex A, Table A.6). A third said video hearings took longer than face-to-face, a quarter said they look less time, while another quarter felt they were about the same. Around a third also felt telephone hearings took longer than face-to-face, while another third said they took less time, and around one in five felt they were about the same. Among the small number of commercial respondents (43) with experience of hybrid hearings, most (65%) felt they took longer than face-to-face hearings.

Qualitative interviews found mixed views among professionals when asked to assess whether or not remote hearings had had an impact on the efficiency of the Commercial Courts. Commercial solicitors were the most positive group in relation to efficiency because remote hearings saved them hours of travel time and in court waiting rooms. This was particularly beneficial for those who do not live in the central belt. Some professionals also noted the positive environmental impact of reduced travel both for themselves and for expert witnesses.

One solicitor estimated that remote procedural hearings probably represented half the cost of an in-person hearing, savings which were passed on to clients. Solicitors also noted a preference for the 'bulk court' approach to procedural hearings; individually timed slots were regarded as less efficient ("if there was slippage the whole day was held up").

Another efficiency appreciated by commercial solicitors was being able to do procedural hearings themselves rather than instructing local agents. This was again perceived to save time and costs for clients (including time spent briefing agents). In addition, they felt that the principal agent is much better placed to answer questions (which in the past often led to delays). A sheriff, in agreeing with this view, noted that having the principal agent in the hearing created "a much more meaningful engagement" with the court.

Judges were also broadly positive about the overall impacts on efficiency of Commercial Court proceedings. Remote commercial hearings were perceived to be more "concise and succinct" due to having submissions in advance, notification of joint positions, and faster disposal of cases which were able to be dealt with administratively. Judges also pointed to greater flexibility if they needed to schedule urgent motions, enabling quicker access to justice. However, they also observed that any time they personally saved in attending remote hearings was often "directly the converse" for preparation and reading electronic documentation in advance of a hearing. One sheriff felt that the conduct of remote hearings, even for procedural business, took much more of their time overall:

"In person you could call the case in 30 seconds, now it takes 3 or 4 minutes longer as you have to organise people into different rooms. Greater court time generally." (Sheriff, ProfJ5)

Judges also had mixed views about whether remote commercial hearings were efficient in relation to court staff time. Remote hearings did free up courtrooms and consequently staff time directly associated with in-person hearings (for instance, Bar Officers). However, the workload for clerks in particular was perceived to have increased. Although remote hearings themselves could be quicker than face-to-face (particularly bulk procedural courts), clerks confirmed that they spent more time managing hearings and supporting participants. For in-person hearings they would generally leave the hearing and be able to do other work. However, they had to stay in remote hearings to manage witnesses joining (or re-joining); to hand over controls for screen sharing; or to help share productions if there were technical problems.

Impact on wellbeing and work-life balance

In the professionals survey, participants were asked about the impact of remote hearings on their work-life balance and, separately, on their wellbeing. The former question was intended to focus on workload issues and the latter on more personal aspects of working remotely. There was a marked difference in responses: more professionals felt that remote hearings had had a positive than a negative impact on their workload, while the reverse was true with respect to wellbeing.

In the commercial context, 39% of commercial professionals felt remote hearings had a positive impact on their work-life balance, compared with 29% who felt the impact had been negative (see Annex A, Table A.9). However, this picture was reversed when it came to the perceived impacts on their overall wellbeing – 45% reported a negative impact, compared with 26% who felt remote hearings had been positive. Looking across the professional groups that responded to the survey as a whole and across all four case types, it is clear that members of the judiciary were the most likely to feel remote hearings had a negative impact on both their work-life balance (50% negative, 23% positive) and wellbeing (58% negative, 13% positive). Taken together solicitors and advocates were far more positive than the judiciary about the impact on their work-life balance (59% positive, 20% negative). However, in relation to their personal wellbeing advocates were considerably more negative: 60% felt that remote hearings had a negative impact on their wellbeing, compared with only 24% of solicitors.^[74] The negative impact on wellbeing was reflected in qualitative interviews with commercial professionals, linked to the perceived erosion of key elements of their professional life, including the lack of social interaction and the loss of informal learning opportunities.

Commercial professionals were, on the whole, keen to discuss the impact of remote hearings on their personal and professional wellbeing. Judges and advocates felt that their wellbeing had been negatively affected and were aware that this was also the case for colleagues. Advocates we spoke to experienced this most acutely.

Judges in both the Court of Session and Sheriff Courts reported feeling more "intellectually tired" in video hearings and more conscious of the need to build in breaks, as would be the case for in-person hearings when the court rises. There were mixed views about the impact on work-life balance and workload more generally. Some professionals did not detect any negative impact; others found they were working more evenings and weekends than before the pandemic because of the lack of any "downtime" between hearings in which to write. For one sheriff this was directly linked to frustration at the operating speed of ICMS (the courts' Integrated Case Management System). They described the process of doing a batch of electronic signatures – calling up individual documents, appending an Adobe signature, saving it and moving on to the next document – as "cumbersome" compared to putting wet signatures on a batch of paper documents because each stage of the digital process involved a "spinning wheel" of delay on screen. As a result, they ended up working at home in the evenings to complete the task:

"The system works faster in the evenings when no-one else is using it, so it has definitely had an impact on family life." (Sheriff, ProfJ9)

A key aspect of wellbeing that emerged from interviews with commercial professionals was the lack of social interaction with colleagues. It was suggested that the effect of social isolation on the profession should not be underestimated because "litigation lawyers are sociable beings". The loss of the lunch meeting, the chat over a cup of coffee or the walk back from court with a colleague were sadly missed.

"I mean we operate in a collegiate environment where we have been accustomed to having a lot of contact with colleagues. The idea that one comes into one's room in Parliament House, sits down at 9am and looks at a screen all day, it's not what most judges signed up for." (Court of Session judge, ProfJ11)

Advocates we spoke to appeared to feel this sense of isolation most acutely. The collegiality of Parliament House was viewed as an intrinsic part of being an advocate in Scotland. One advocate explained that the lack of informal contact meant, for instance, the loss of a colleague's advice on a difficult legal problem and the generosity that is characteristic of the Bar. Another spoke of the loss of a "support network" to talk things through with if a hearing goes badly. At the time interviews took place, it was reported that many advocates had still not returned to the Advocates Library and "to the way things were" before Covid. There was concern for younger colleagues that they would miss out on learning opportunities gained by attending hearings, as discussed above, and that they may be cut off from the wider social benefits of the advocates' community.

Commercial solicitors interviewed for this study were less concerned at the impact of remote hearings on their wellbeing. While acknowledging missing the camaraderie of the courtroom, some even thought it had had a positive impact on their wellbeing, since the more efficient use of their time had improved their work-life balance. One solicitor echoed concerns from advocates, however, over whether, in the longer term, the lessening of social contact may hinder the ability to develop good professional relationships and trust between colleagues.

In addition to discussing the impact on their own wellbeing, judges voiced concern about the wellbeing of clerks, who have had to embrace a different role and a different way of working. This was perceived to have been particularly acute in the early stages of the pandemic when they were expected to facilitate hearings without necessarily having the resources at home to do so; an example was given from early in the pandemic where a clerk was facilitating a hearing from home with a laptop balanced on an ironing board. Clerks themselves did not report major impacts on their work-life balance and wellbeing. They did, however, note that managing their workload can be more difficult when they have a mix of video and in-person hearings, along with other court business in between.

Views on other current and potential adaptations

The use of digital technology has been an important feature of commercial actions from the inception of the Commercial Court. Prior to the pandemic court papers were able to be lodged electronically by email and "voluminous" productions (i.e. documentary evidence) by physically lodging a USB memory stick.^[75] However, digitisation was limited in that the digital documents had to be accompanied in many cases by a paper copy (for instance any document exceeding 20 pages, or in colour, or requiring a signature). Only a very limited category of documents, including productions, did not require hard copies (and even then hard copies could be requested). Court hearings could be conducted using digital documents and screens were in place for counsel to use with their own laptops. The process of further digitisation has, by necessity, been accelerated by the pandemic.

In the early stages of Covid-19, paper bundles had to be sent to witnesses' homes which created "lots of audio problems with leafing through documents". The commercial courts were quickly able to accept electronic documentation. In Court of Session remote hearings documents began to be shared on screen, which led to the installation of multiple screens to allow participants to view documents and see one another at the same time. One advocate pointed out that accompanying measures such as sockets, cabling, digital ports and larger tables to accommodate multiple screens were, at the time of interviews, still needed to complete a fully functional digital environment. However, by and large commercial professionals viewed these developments as a significant improvement:

"The pandemic has been an absolutely horrible experience for people affected by illnesses, but the court system has moved on to somewhere it wouldn't have been within the next 15 to 20 years." (Court of Session judge, ProfJ10)

Commercial solicitors, many of whom already operated in a paperless environment, were particularly positive. Some noted that being able to create joint electronic bundles and email everything to the court saved time and reduced the environmental impact of hearings. However, it was pointed out that the amount of work involved may be challenging for smaller firms with fewer staff and without access to specialist software.

While other professionals were broadly supportive of digitisation, they felt that it had made some processes slower, particularly in the Sheriff Courts. These comments were principally concerned with the speed of the ICMS system, which was already an issue in some locations prior to Covid. However, it became a more significant issue during the pandemic as more business was conducted digitally, such as greater use of electronic documentation and e-signatures. Problems were also sometimes experienced when documents (or amendments) were filed close to the hearing date, which could cause a delay in papers being available to the judge.

Some professionals thought it would be beneficial if courts had specialist commercial staff trained specifically in managing electronic documentation both prior to and during hearings. For this reason, in high value cases in the Court of Session some advocates felt it was worth hiring external document management companies to manage the joint bundle, screen-sharing of documents, and to produce a very speedy transcription. Judges (and other professionals) felt that recording and transcription of hearings would be a considerable benefit.

Some judges are clearly more adept with technology, monitoring activity on multiple screens (being "an air traffic controller") or navigating lengthy pdf documents. A lack of confidence in technology may partly explain why some still prefer to print documents, although it may also reflect a more specific lack of confidence in court technology, as well as the familiarity and speed of marking up a paper document in preference to a digital one:

"I'm afraid my brain is wired in a way that is paper based. Maybe another generation will be different. I require the documentation in front of me and I can mark things, I can write annotations on it, I can put post-its down and highlight and I can fold pages, you know, for ease of reference. No doubt there are digital equivalents for all of these, I've never been trained in it." (Sheriff, ProfJ3)

This view was echoed by clerks of court, who noted that different judges had a preference for either electronic or paper documents. They did not see electronic papers as having made much difference to their own workloads (although there was some frustration around late submission and poor naming of documents by solicitors). They also confirmed that the electronic document route was not well supported by the available equipment in court at present, citing examples of courtrooms with no docking station.

One advocate had more reservations about digitisation of the court process, taking the view that it might "narrow" the arguments that can be made in court. The spontaneity of picking up a particular piece of paper to put before a witness may be curtailed by the difficulty of finding that reference within potentially thousands of digital pages. A commercial party also noted that they had found it extremely difficult in a remote hearing to follow the detail referred to in multiple complex spreadsheets.

Conclusions

Reflecting back on the original impetus for creating an expedited and efficient commercial procedure in the Court of Session, there remains a concern at senior levels of the profession that Scotland can do better. Although welcome progress has been made as a result of pandemic measures introduced, there was a strong belief both that in-person hearings need to remain an option for commercial business, and that there needs to be greater investment in technical infrastructure and well-trained staff to support commercial hearings:

"we need to make sure our product is as good as it can be and I think an element of that is retaining the in-person hearings for substantive business because clients still want their day in court physically, but also making sure that the delivery of the judicial process in terms of the infrastructure, the environment is of a commensurate standard to that you would find in London." (Advocate, ProfC1)

Different concerns were expressed with respect to commercial actions in the Sheriff Courts where legal professionals, fully aware of the flaws and difficulties, on balance welcomed the new digital world. Subject to the provision of high quality broadband, professionals felt that remote commercial hearings allowed them to process procedural business more efficiently; that hybrid hearings gave them greater flexibility; and digitisation meant savings in time and reduced the environmental impact of the courts.