30th March 2020

Closed Courts – The Challenge of the Pandemic

The Covid-19 pandemic poses new problems for everybody who wishes to bring any kind of dispute to court, and for solicitors working in law firms up and down the country. As far back as anyone can remember, the courts and tribunals of Scotland have always been open for business, dealing with disputes and applications of all descriptions as quickly and efficiently as possible. All this has changed beyond recognition in a matter of days.

The Court of Session, Scotland’s highest court, which tends to deal with the most complex and high-value cases, is now hearing essential and urgent matters only, namely child abduction petitions and applications needed to protect people or businesses from imminent physical or financial harm. Other matters will only be dealt with if the court can be convinced that they are urgent. All evidential hearings in non-urgent cases have been cancelled, and procedure in existing cases is pretty much at a standstill.

In most types of claim there is a date by which a summons will have to be served if the claim is to be kept alive, e.g., in personal injury matters, where it is generally necessary to serve a writ on the person to blame within three years of the accident. If a time limit is about to expire the Court of Session will still process the summons to allow it to be served, but other summonses sent to the court will not be processed until after things return to normal. In the meantime, the normal court offices are closed and will only receive documents by email. This situation will last until at least 20th April, but few seriously expect it to alter for a long time after that.

Sheriff Courts
As to the local Sheriff Courts, it is much the same story. Many of them have been closed altogether, and the only ones now operating are Edinburgh, Glasgow, Dundee, Aberdeen, Inverness, Falkirk, Paisley, Hamilton, Kilmarnock, and Dumfries. Only urgent business is being dealt with, which again means applications protecting people and businesses from imminent physical or financial harm, and applications regarding the welfare of children. All evidential hearings have been cancelled until the end of June unless there is a good reason why they should take place, normal procedure has been brought to a halt, and only urgent documents are being processed.

When court hearings do take place, they are now likely to be by telephone conference or video, or parties are emailing written arguments to the judge, who then takes the decision without physically seeing the parties at all.

Employment tribunals have been similarly affected. Evidential hearings have been cancelled, to be replaced by a telephone conference with the Employment judge to discuss future procedure.

On a practical note, in many cases court documents and orders have to be served on people by sheriff officers, who are of course as much affected by the lockdown regulations as everybody else. Only urgent documents are now being served, and others will have to wait until the pandemic is over.

Non-urgent Claims
Of course, the courts have had no choice. But the practical effect for all people with non-urgent claims is that for the foreseeable future the court system might as well not exist. People contacting their solicitors wishing to go to court about an unpaid debt, a broken contract, a personal injury and so forth, are having to be told that court action is simply not an option at present. Perhaps even worse, people who have been waiting in the court system, in some case for years, and were expecting to go to trial in the next month or two at last, have had their hearings abruptly cancelled, with no idea of when new dates might be fixed. There is a vague idea around that everything may start getting back to normal around July or August, but there is no guarantee of that. And even if the late summer or early autumn does see some return to normality, what is to happen to court hearings already scheduled for September or later? Will they go ahead as planned, or will they be rescheduled to allow cases which were meant to be heard earlier in the year to be decided? It is easy to see some bitter arguments ahead, and the knock-on effects of the crisis continuing for years to come.

However, none of this means that solicitors are entirely helpless. It should be remembered that the vast majority of disputes settle through sensible correspondence and negotiation between the solicitors for each of the parties without ever going near a court. There is no reason why many disputes should not continue to be sorted out this way. Whether the removal of the threat of court action, albeit temporary, will result in certain people taking advantage of the situation and being less inclined to negotiate remains to be seen.

Also, during the pandemic, it may be possible for more claimants to settle disputes by arbitration and mediation. Both these methods can be speedy and flexible, with less in the way of formal procedural rules, and they can easily be conducted by way of emails, phone conferences, and Skype video hearings. There will still be challenges in getting arbitrations and mediations off the ground at a time when secretarial staff are largely absent and everybody is dependent on various home PC’s, laptops, and phones, but with a bit of determination it is a challenge we are sure can be met.

For help and advice on any of the matters raised in this article please speak to a member of the Blackadders Dispute Resolution Team or any member of the Blackadders’ COVID-19 Advisory Team.

Richard Godden, Partner
Dispute Resolution
Blackadders LLP
@The_PIMan

www.blackadders.co.uk

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