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Updated 4 May 2020

From 1 May 2020, new SCTS guidance relating to civil business in the Sheriff Courts indicates that it will be possible for certain ‘non-urgent’ cases to resume but only where the specific court in question is satisfied that there is good reason why the action should be restarted and that the action can be progressed remotely without the need for a hearing on evidence.

Parties will need to apply to the court in writing (in a specific form) for a case to be restarted, setting out reasoning, and the court will determine the applications as soon as reasonably practicable. Such applications can only, as matters stand, be made in relation to (1) ordinary, family and commercial actions; (2) adults with incapacity applications; and (3) corporate insolvency proceedings where, under previous court-issued guidance, the case has either been sisted (paused) indefinitely, adjourned to a date on or after 1 June 2020 or in which there has simply been no further order made by the court. It will also apply to commissary proceedings (the purpose of which is establishing the succession rights and disposal of a deceased person's estate). Simple procedure cases and summary cause actions appear to be unaffected by this latest development, indicating that they will remain paused or adjourned as per previous guidance for the time being.

This will be a welcome development for many court practitioners and clients who wish to see their cases progressed however it would seem clear that any case which would require the leading of evidence to resolve will, for the moment, remain stagnant unless there are certain steps in procedure which the court is satisfied can be progressed prior to a hearing on evidence being required. So we may see certain cases being restarted temporarily, before being sisted or adjourned again when the time comes for a hearing on evidence to be fixed.

With regard to cases which the court agrees to restart, we expect to see use being made of telephone and/or video conferencing for procedural hearings or perhaps matters being dealt with by written submissions (similar to measures recently adopted by the Court of Session). We might also see a number of Debates (substantive hearings in which a case could be won or lost on legal argument only without the hearing of any evidence) being conducted remotely which could bring a considerable number of disputes to a conclusion while social distancing and lockdown rules remain in place.

Updated 23 April 2020

On around 23 April 2020, the SCTS provided some further guidance on what constitutes ‘urgent’ civil business in the Sheriff Courts. Those still, broadly, cover applications relating to caveats, necessary applications for interim orders, child protection issues, and processing new writs where there are timebar issues.

Beyond these, the ten Sheriff Courts which are currently still operating will also consider urgent insolvency and sequestration applications. Although there is still no real clarity in what circumstances an application may qualify as ‘urgent’ and therefore this will inevitably be a decision for the particular Sheriff in question. The Sheriffs will still also have the discretion to deal with any other matter which is considered urgent even if it does not fall into one of the above broad categories. All non-urgent hearings, whether substantive or procedural, will continue to be postponed for the time being.

Meanwhile, as of 21 April 2020, the Court of Session (the highest civil court in Scotland, located in Edinburgh) has implemented a strategy of resuming some non-urgent civil business where it is possible for hearings to be dealt with remotely. The Inner House of the Court of Session (the part which deals with appeals) has started to operate as an online court with hearings proceeding by way of WebEx video conference or written submissions, as appropriate. The Outer House of the Court of Session (the part that deals with cases at first instance) has resumed dealing with most procedural matters in non-urgent civil cases (including commercial, family, personal injury and petition cases) by telephone conference or by written submissions where the court permits. It remains to be seen whether similar measures will be implemented for the Sheriff Courts which, for the moment, will continue to only deal with urgent matters.

One thing which remains certain is that any hearings (whether in the Sheriff Courts or the Court of Session) which require the attendance of witnesses will continued to be adjourned for the time being and all simple procedure cases remain paused.

Updated on 27 March 2020

What is happening with the courts in Scotland and how are ongoing civil court proceedings affected?

In response to the latest stringent restrictions announced by the UK and Scottish governments, the SCTS has now confirmed that, as part of the next phase of its contingency plans, all civil business will be adjourned until further notice.

For civil court business in the Sheriffdom of Grampian, Highland and Islands (which has now all been consolidated at the Sheriff Courts in Aberdeen and Inverness), it has been announced that all civil hearings will be adjourned (without the need for parties to attend court) until at least August 2020. We expect to see similar announcements from the other five sheriffdoms very soon.

The civil courts in Scotland will now effectively be closed except for urgent and necessary business which, as matters stand, is identified as the lodging of caveats, necessary applications for interim orders, child protection issues, and processing writs (new court actions) where there are time-bar or limitation issues. Outside of these, the courts will only consider matters which it regards as urgent on cause shown.

The majority of the current civil court cases will experience a significant delay in their progression and many potential new court actions which are not considered urgent will have to wait. That said, the inevitable delays present an opportunity for parties to explore in more detail the possibility of resolving their disputes out of court (with the assistance of lawyers where necessary). When the civil courts eventually re-open for normal civil business, we expect to see a huge surge in new court actions. Potential pursuers would be well advised to seek legal advice sooner rather than later on advancing a claim to try to be near the front of the line in getting their cases progressed when the civil courts re-open.

Upated on 25 March 2020

On 25 March 2020, it was announced by the SCTS that all court business would be consolidated into ten sheriff courts. Your case may be affected. The courts which will remain open (and the business from other courts which will transfer to them) are as follows:

Glasgow Sheriff Court (no additional business being transferred to it). Edinburgh Sheriff Court (with business transferring to it from Livingston, Selkirk and Jedburgh). Dundee Sheriff Court (with business transferring to it from Forfar and Perth). Falkirk Sheriff Court (with business transferring to it from Stirling, Alloa, Dunfermline and Kircaldy). Inverness Sheriff Court (with business transferring to it from Elgin, Tain, Wick and the Island Courts). Aberdeen Sheriff Court (with business transferring to it from Peterhead and Banff). Paisley Sheriff Court (with business transferring to it from Greenock and Dumbarton). Kilmarnock Sheriff Court (with business transferring to it from Dunoon, Oban and Campbelltown). Hamilton Sheriff Court (with business transferring to it from Airdrie, Lanark and Ayr). Dumfries Sheriff Court (with business transferring to it from Stranraer).

We anticipate this has been done to streamline the handling of cases and to transfer business to courts which are perhaps better suited at providing telephone and video conferencing facilities. If you are pursuing or defending a court action in any of the sheriff courts outwith the ten which are remaining open, you may wish to contact your solicitor to see how your case might be affected by this latest development.

23 March 2020

COVID-19 is having a profound impact on our daily lives and proving a challenge in every sector. Cafés, pubs, restaurants, nightclubs, cinemas, gyms and leisure centres have been told to close, homeworking has, where possible, become the norm and perhaps the strictest measure yet has recently come with schools shutting their doors to the majority of their pupils. On 23 March 2020, First Minister Nicola Sturgeon also called for building sites and shops selling non-essential items to close.

Furthermore, the government has issued a warning that even stricter measures might be introduced if the guidance on social distancing is not followed.

What, then, of the justice system? What is happening with the courts in Scotland and how are ongoing civil court proceedings affected?

Whether you are a party to a court action, a witness, a lay representative or have some other reason for which you expect to be attending court in the near future, you may well be wondering what the impact of COVID-19 is in that context and how it might affect you and the court action you are involved in.

As matters stand, the main impact on the court system is that any civil court hearings which require the attendance of witnesses (i.e. evidential hearings or ‘proofs’) will be adjourned. This is likely to happen either at the request of the parties involved in the case or as a result of an executive decision by the court. It seems likely that proofs will be adjourned indefinitely for the time being, with new dates being fixed for them in due course. This will affect civil proofs in all Sheriff Courts in Scotland as well as the Court of Session and will likely result in hundreds of proofs being adjourned across Scotland over the coming days, weeks and months.

Hearings without witnesses are, instead, expected to go ahead where possible. These are typically hearings of a procedural nature where no evidence is to be led but where the aim of the hearing is to decide what should happen next to a case. It seems that the courts will, where possible, try to accommodate requests from parties to have these hearings dealt with by way of written submissions (most likely to be submitted by email) or through telephone or video conferencing. This is, of course, to avoid the personal attendance of solicitors and litigants at court where possible.

Court practitioners on opposing sides of court cases are being encouraged to discuss their case ahead of any upcoming hearing to determine whether an agreed position can be communicated to the court in advance of the hearing, in which case, it would generally be likely that the matter could be dealt with administratively by the Sheriff without the need for either side attending in person. Some court attendances will inevitably remain necessary but we expect to see a shift to email communication being strongly recommended and preferred by all of the Scottish Courts. If in doubt, you should contact your lawyer or the court in question if you are not legally represented.

We expect that guidance from the Court of Session and Sheriff Courts will continue to be disseminated to the public and to court practitioners as the COVID-19 situation continues to evolve. For the moment, it is worth bearing in mind the following scenarios and what you may wish to do if you find yourself in one of them.

If you are a witness who is currently under citation to attend court in the near future, you may wish to contact the party that has cited you (or their legal representative, if they have one) and ask whether they are in a position to cancel your witness citation. They may not be able to do that until the proof has been formally adjourned, but it is worth checking all the same. Proofs that are currently fixed for many months down the line may not be affected.

If you are a party to an action which is due to go to a hearing over the coming months, you may wish to contact your legal representative (if you have one) to check what the status of your case is. If you do not have a legal representative, then you may find the answer to your question on the Scottish Courts and Tribunals Service (SCTS)’s website at www.scotcourts.gov.uk. Failing that, you may wish to contact the Sheriff Court directly.

The SCTS has a dedicated page on its website where updates are published on any changes to the way in which court business is carried out as a result of Covid-19. Litigants and court practitioners alike would do well to regularly check the SCTS website for updates and maintain a line of dialogue amongst themselves and the court to ensure that there is as smooth a transition as possible to the modified ways in which court business is to be conducted during this uncertain period.

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