On Monday 23rd March 2020, the Prime Minister made the announcement we all anticipated, lockdown across the country and the line “stay home, protect the NHS, save lives” was repeated throughout.
For so many industries, the lockdown hit hard and fast. Within the legal sector, there was a flood of emails from firms advising that all staff were working from home but were still able to provide a full service. At Road Traffic Accident Law Scotland LLP, we acted quickly to make sure all members of staff were given a laptop and secure access to our case management systems. Within days, the insurance industry did likewise and by the end of the first week of lockdown, lawyers and insurers continued to progress cases with a little ingenuity and a great deal of mutual respect. Cases not subject to litigation were negotiated by email and phone. Most insurers swiftly moved to electronic bank transfers to process client damages awards and the cheque became a thing of the past.
As across the whole of the legal profession in Scotland, our aim is to continue to provide a service to our clients whilst protecting our staff. It has not been easy and has taken a great deal of investment, but the use of cloud-based systems, phones and video conferencing has made this transition relatively seamless.
Video conferencing is now an everyday occurrence. We consult with our clients and Advocates from home. As many of our clients have suffered life altering injuries following road traffic incidents, we have a responsibility to ensure that, where possible, treatment, medical examinations and the litigation process, continue as smoothly as possible.
Many treatment providers including physiotherapists and psychologists have moved to providing sessions via video conferencing. Medical experts have also been proactive in setting up virtual consultations so that cases do not simply have to be put on hold until the uncertainty of COVID-19 and this lockdown comes to an end.
Initially, the Courts notified practitioners that procedural matters could be conducted by written submissions or telephone conferencing. The Courts issued guidance on an almost daily basis from 17th March starting positively but ending with a note on 25th March stating that only essential court business would be dealt with. The litigation process quite simply ground to a halt. Civil Court hearings for personal injury actions scheduled for proof between March and June were discharged across the board despite the fact that over 98 percent of personal injury actions raised in Court settle without going to proof.
If the legal profession and the insurance industry could adapt so quickly to remote working, what prevents the Scottish Courts and Tribunal Service (SCTS) from doing likewise? We can conduct procedural hearings by telephone conference. We can submit written submissions as an alternative and Judges and Sheriffs can still request reports from Pursuers and Defenders’ agents via email regarding progress towards settlement in cases set down for proof.
Concerns regarding SCTS attitude of “mothballing” have been raised by the Faculty of Advocates. The Vice Dean of the Faculty, Roddy Dunlop QC, recently wrote to the SCTS highlighting that while no-one underestimates the challenges faced by everyone in this current climate, we are completely out of step with what is happening south the border. In England and Wales, arrangements are being made for telephone, video conferencing and other technology to be used so that hearings can continue where possible.
Access to justice should not be denied. We urge the SCTS to listen to the profession and to help us. Please re-open for business and ensure cases are progressed by alternative means. It’s time to restart our beating heart. It takes innovation, hard work and ingenuity but if matters continue to be stalled, it will be the most vulnerable in our society who will be hit the hardest and the damage to the Scottish Judicial System will be irreparable.
Brenda Mitchell and Jodi Gordon, Partners at Road Traffic Accident Law (Scotland) LLP