Update on court process - court of session

The Court of Session has issued guidance on new measures introduced to facilitate the efficient disposal of court proceedings amid covid-19. This note addresses the guidance issued for civil and commercial cases operating in the Court of Session only. However, it is hoped that similar measures will be introduced in due course for actions in the Sheriff Courts.

These measures take effect from 21 April 2020 and shall cease to have effect from 10 May 2020, unless extended.

Coronavirus (Scotland) Act 2020

The guidance reinforces the key changes in court process introduced by the Coronavirus (Scotland) Act 2020.

Whilst these measures remain in force, all hearings in the Court of Session will be conducted remotely and attendance at court shall not be required unless the court otherwise directs. The way in which hearings shall be conducted depends on the type of court action and the stage in process but will vary between WebEx video conference, telephone conference and written submissions with the court's permission.

All court papers relating to both new and current actions can be submitted electronically. Where court papers require to be signed, the court shall permit those papers to be signed and submitted electronically.

The court is proposing to deal with correspondence in date order from 23 March 2020, so there may be some delays for parties already awaiting a response from the court.

Overall, these are positive changes to enable the court to get back up and running and minimise further delays.

New court actions

Given the introduction of electronic signatures / transmission of documents, the Court of Session is accepting and processing new court actions from 21 April 2020. Given the potential for a backlog of business in the email inboxes, it will be important for client's to move on new instructions quickly to ensure their cases are as near to the top of the pile as possible.

Existing court actions

What will happen to existing cases going forward depends on the type of court action and the stage in court process. It appears from the guidance that substantive hearings, such as proofs/trials and hearings on legal arguments, will proceed for cases before the Inner House only (mainly Appeals). Procedural hearings, meaning hearings fixed solely to decide on further procedure, will be dealt with for all cases.

It should also be noted that all hearings where witnesses are required, regardless of the type of hearing, will continue to be adjourned for the time being. We will keep this under review.

Appeals

For substantive appeal hearings schedule prior to 23 March 2020, the court will reassign a new hearing date.

For procedural appeal hearings assigned from 21 April 2020 onwards, these will proceed as scheduled by way of written submissions. Where it is necessary, procedural hearings can take place by WebEx video conference.

Commercial actions and other civil business (Ordinary actions / Petitions)

From 21 April 2020, the majority of procedural hearings are scheduled to go ahead. In the event a hearing is cancelled, the court will process this administratively and contact parties with a rescheduled date. The court's preferred approach is to have the hearings take place by telephone conference. Where it is agreed with the court, procedural hearings can take place by written submissions.

Urgent business

The courts are continuing to prioritise urgent civil business such as interim interdicts, cases relating to time bar and other matters on cause shown. Determining whether or not a case is urgent should be done on a case by case basis. We are available to discuss the particular facts and circumstances of each case to determine whether it would be deemed urgent in the current climate.

Conclusions

These measures are a welcomed step in the right direction to ensure that the courts can continue to administer justice in the current climate. The new processes are subject to ongoing review and may evolve in time to ensure the most efficient business practices are being utilised. AG are up to date with all new processes and will keep you informed of any changes.