12-03-2021

All change in the Scottish Courts

Louise Houliston and Daniel Kinloch assess the impact of the changes to the court system in Scotland and if the huge leaps forward may bring an additional consideration in selecting the right fraudulent claims to defend to trial.

The past 12 months of lockdown have created a unique and rapid change in how civil court cases are being dealt with in Scotland. The world has been forced to adapt, and the same can be said for lawyers and the judiciary in Scotland. In fact, there has been a huge change in working practices with the widespread adoption of modern technology. The leap forward in such a short space of time has been unprecedented.

Scottish lawyers are now used to signing legal documents electronically, emailing court documents, rather than sending hard copies and jurors giving their verdicts in the cinema.

Before the pandemic, for the most part, hard copy court documents with wet signatures were required to be sent to court; emails with court documents and electronic signatures were prohibited.

Court lawyers are getting used to the move from traditional court buildings to virtual court rooms. On the whole virtual and telephone hearings seem to be running smoothly with little logistical problem. Lawyers are not having to travel and are able to work more efficiently and effectively, in turn saving the client money. In theory, one could appear at Court in Peterhead, followed by Glasgow in the space of a morning. More often than not, Scottish lawyers now find themselves in business attire within the comfort of their own home and it seems that it shall be the default position for some time to come.

But, the virtual trial may not be appropriate for all civil case types, especially those where fraud is suspected. Will the fraudster benefit from the virtual trials?

Arguably it is more difficult for the Judge/Sheriff to assess the demeanour, reliability and honesty of a witness. The fraudster may feel more comfortable and find it less onerous giving evidence whilst in the comfort of their home or a familiar location. The fraudster could potentially have notes, or assistance off camera…although this in itself would be contempt of court but there is no way of being absolutely certain other than being in a physical court.

Where there are fraud concerns, a physical rather than a virtual trial would be preferred, or even a hybrid trial, with some witnesses giving evidence remotely and others in the physical court. At the time of writing, if lawyers insist on witnesses giving evidence in person, there will likely be delay and increased cost.

Therein remains a challenge for compensators looking to defeat fraudulent claims.

Currently, the default position in Scotland at most courts is that the trial will run remotely, with lawyers having to seek authority of the court to conduct a physical trial. This may of course may flip back as we progress down the road back to normality. It is difficult to say for certain, but it will be sometime before the Scottish courts can clear the backlog of cases and restrictions are sufficiently lifted to return to business as ‘normal’. The widespread adoption of technology is here to stay, at least in the short term.

Back in June 2020, our colleagues considered the position from their jurisdiction, here. Since then, in the English/Welsh courts, there have been a number of fraud findings on a remote basis with both lawyers and the judiciary adapting and finding a way to defeat fraud. The use of the technology is welcomed going forward and it brings the Scottish court system a little closer to that in England/Wales. Where a claimant’s credibility is key, a remote trial may be a further obstacle for compensators to overcome, but the experiences in the English/Welsh courts demonstrate that judge will make findings of fraud on a remote basis.

It will be interesting to see how the situation develops in Scotland. It is apparent that now, more than ever, lawyers and compensators looking to challenge fraudulent claims, must investigate, challenge and evidence fraud concerns to keep pace with the changing legal landscape.