The Iceberg is moving: The use of IT in Scottish Litigation

The Iceberg is moving: The use of IT in Scottish Litigation

17 April, 2018 by Gilson Gray in Blog

Technology is driving forward almost every aspect of our daily lives at an unprecedented speed.  The legal profession however isn’t known for moving quickly.  There’s legislation over 150 years old which still gets used on a daily basis and there are current practitioners who can still remember the days when Court of Session Records had to be hand stitched!

In terms of how technology impacts upon litigation, it’s understandable that practitioners can be nervous about change.  If it’s not broke, why fix it?  There’s also a concern that if a practitioner tries to make use of technology but there’s a problem, they will then have to explain to their client why they didn’t simply use the tried and tested existing methods.

Recently however, significant progress has been made.  One of the most important drivers of the use of technology in Court, has been a few influential members of the Bar, particularly when it comes to the use of technology whilst in Court itself.  Only a few years ago, Counsel would need hard copies of all documents and would arrive in Court followed by armies of trainee Solicitors carrying boxes full of ring binders filled with reams of paper.  In some cases it wouldn’t be unexpected for there to be 7 copies of identical papers for the use of parties and judge.  However, it’s not now uncommon to see Senior Counsel conduct high profile and high value substantive hearings armed with nothing more than a tablet computer.  The early adopters of this method of working have influenced a not-insubstantial portion of the bar to follow suit and providing papers to counsel electronically is now standard practice.  Following their lead, such use of technology in Court is now starting to gain traction with the Solicitor branch of the profession and it can surely only be a matter of time before the use of electronic devices in Court by Solicitors becomes accepted standard practice.

The Scottish Court Service have taken great steps towards using technology to make dealing with actions more efficient.  The new Simple Procedure Rules for example, have been designed with the use of online portals in mind.  Although there have been some delays in its development, a basic system is now live which allows practitioners to check the progress of cases remotely with further developments in the pipeline.  In the All Scotland Personal Injury Court, productions are now allowed to be lodged electronically.  This is of real value to practitioners and to the Court.  In many instances, the documents which are being lodged are designed to be read from a screen and not to be printed off in hard copy.  Electronic copies of documents also ensures that all parties are working from exactly the same version and that there are no differences in terms of ordering or numbering.  The benefit to the environment also cannot be underestimated- not to mention the health benefits to the back of whoever was previously tasked with having to run up to Court carrying bankers boxes full of heavy documents!

The fact that Motion business for most types of action can now be dealt with by way of e-motions has gone a considerable way to reducing delays in many types of action.  The main exception to this being Ordinary actions in the Sheriff Court which still require to be dealt with by paper motion.  From experience, the use of e-motions considerably cuts down the time required for dealing with Motions and generally leads to greater cooperation and agreement between parties.  Although I’m not aware of any plans for E-Motions to be introduced for Ordinary Sheriff Court actions, this is surely the next step and given the number of actions which this encompasses would likely save the Court Service, practitioners and client a considerable amount of time, resources and money.

The Inner House and the Commercial Court of the Court of Session, have also been important adopters of information technology.  There are now rules requiring copies of pleadings to be lodged electronically along with other documents for use by the Inner House or at substantive Hearings before the Commercial Court.  This allows not only Judges to have easily portable copies of the information to hand it also means that Solicitors, Counsel and the Court are all working off exactly the same document.

Going forward, there’s no doubt that technology will play an ever increasing role in how litigation is conducted.  For this to be at its most effective however, it needs to coincide with the ongoing development of the Court system which is developing far more quickly than it ever has done in the past.  As a firm, we fully embrace these new methods of working and have invested heavily in ensuring we have both the hardware and software to take this forward.  Several of my colleagues have also been involved in helping to trial the new systems being put in place by the Court Service and their experience has been encouraging.  Even the use of relatively simple technology provides significant time savings and further developments towards a greater use of technology can only be welcomed.  Those practitioners who don’t embrace such technology can only be at a disadvantage.

It may have taken a considerable time to get to where we are now but the adoption of new technology for use in Scottish litigation is gathering pace and it’s benefits are already clear.  I don’t know what will happen in the future but am certain that in 10 years’ time the thought of carrying around a file of papers will be a thing of the past.