Over the last two years, we have written a number of updates on actual and proposed changes to how civil litigation is conducted in the Scottish courts.
Some of these changes have been prompted by the practical challenges presented by the Covid-19 pandemic, for example, the need to allow for electronic service and filing of court documents during lockdown (discussed here). Other developments have emerged in direct response to the practical experiences of the courts and court users during the pandemic (for example, the recent consultation on consolidating the widespread use of remote hearings discussed here and here).
While these changes and proposals are broadly aligned with pre-pandemic ambitions set out in the Scottish Government’s digital strategy for justice, they have had the practical effect of accelerating the pace of change that might otherwise have been expected.
Now that some of the practical challenges presented by the pandemic have eased, the government, the Scottish Courts and Tribunals Service (SCTS) and the Scottish Civil Justice Committee (SCJC) are considering what civil justice in Scotland should look like in the longer term.
Two recent developments shed some light on what may lie ahead in both the short- and the longer-term: the passing of the Coronavirus (Reform and Recovery) (Scotland) Act 2022 and the publication of the long-awaited Second Report by the SCJC on the New Civil Procedure rules.
Coronavirus (Reform and Recovery) (Scotland) Act 2022
In 2021, the Scottish Government launched a wide-ranging consultation into whether any of the remaining temporary legislative provisions it had introduced to deal with issues raised by the pandemic should be extended or made permanent. These included civil justice provisions introduced to allow (a) service and filing of electronic court documentation and (b) hearings to be conducted remotely.
Following a review of the responses received, the government indicated its intention to extend the existing civil justice provisions but not to make these permanent at this time. The analysis of responses noted that, whilst there had been a broad consensus in favour of making the provisions permanent, and whilst this would be consistent with the SCTS’s digital transformation plans, it was considered appropriate to instead have a longer period of temporary extension to allow for further consideration of the full impact of the measures.
The Coronavirus (Reform and Recovery) (Scotland) Act 2022 will therefore introduce a new set of broadly similar provisions to those brought in during lockdown. These will take effect from 1 October 2022, until at least 30 November 2023 with the potential for extension to 30 November 2025. For now, this legislation will continue to facilitate the use of electronic documentation and permit hearings to be conducted remotely as required, and there is every reason to expect that these arrangements will continue thereafter, though possibly in a modified form. It seems likely that these permanent arrangements will be built into the new civil procedure rules currently being developed by the SCJC.
The SCJC’s Second Report on the New Civil Procedure Rules
The SCJC has recently made some long-awaited and welcome progress on this significant project.
The project has its origins in Lord Gill’s Scottish Civil Courts Review of 2009. One of the recommendations of that wide-ranging Review was a complete rewrite of the civil procedure rules. A working group was established which produced an interim report with a series of recommendations in 2014. This led to the setting up of the Rules Rewrite Committee in the SCJC. In May 2017, a substantial First Report was issued, setting out the scope of the project, establishing six workstreams and identifying next steps, including the development of a detailed procedural model for ordinary civil actions.
The SCJC has recently produced its Second Report, setting out a vision of the ‘procedural narrative’ of a standard ordinary action. This will underpin the new rules for ordinary actions. Specific rules for specialised types of actions (e.g. personal injury, commercial and family actions) will be dealt with in later stages of the project.
Key proposals in the Second Report include:
- Introduction of a statement of principle similar to the overriding objective in the Civil Procedure Rules used in England & Wales;
- Introduction of a mandatory requirement for pre-action correspondence between parties;
- Introduction of a ‘permission’ test for actions presented by party litigants to ensure these disclose a stateable case at the outset;
- Changes to the rules on registration and service of Summonses – these proposals may have an ancillary impact on how time bar issues are navigated;
- Requirements for more concise and focused pleadings, with possible sanctions in expenses and/or the making of orders to ‘narrow’ pleadings;
- Introduction of increased case management and judicial control of proceedings;
- Formalising and broadening the use of electronic documentation in court proceedings; and
- Introduction of new rules on presentation of evidence, including some novel provisions in relation to witness evidence e.g. providing witness evidence by way of video recording.
From a digital perspective, the quotations below are illustrative. The introduction to the report notes that this is:
“… a once-in-a-generation opportunity to improve the way in which civil justice is delivered, make procedures more efficient and bring civil justice into the digital age.”
The introduction also quotes this passage from the Lord President’s foreword to the First Report:
“The courts must provide a system of justice to the public… Platitudes about justice being seen to be done are not a complete response to a generation that sees no unfairness in transacting some of its most important business entirely online…”
The SCJC’s Second Report will form the basis of the detailed rules that will now be produced for ordinary actions. A formal consultation on those draft rules will be launched in due course.
Whilst these proposals are not solely concerned with digitalisation, the commitment to digital transformation is clear. This will undoubtedly have many positive benefits. However, it may also result in some significant changes to how civil litigation is conducted, and care needs to be taken to ensure that important safeguards are not inadvertently lost.
There is some way to go before the final shape of the new civil procedure rules is settled and brought into force. There will likely be more than one consultation process before that happens. It is to be hoped that court users, lawyers and other stakeholders will engage with those consultations, to ensure their valuable practical experiences are taken into account in assessing the impact of the rules that are ultimately produced.