CMS Expert Guide to Digital Litigation in Scotland

The Scottish courts have been steadily working on a programme of digitalisation for at least the last decade, with the key objective of enhancing the cost-effective and efficient delivery of justice. Digital innovation is one of the strategic priorities of the Scottish Courts and Tribunals Service (SCTS). The SCTS’s current Digital Strategy set out a five-year programme of reform (for the period 2018-2023) detailing the steps by which they proposed to deliver on that priority. The progress of some of the components of this programme were accelerated by the COVID-19 pandemic and the need for the courts to quickly pivot to digital systems.

At the time of writing, digitalisation of the civil justice system in Scotland is reasonably well-advanced, albeit with much still to be done over the coming years as tools continue to be developed and rolled out across the whole system. The general approach is one of an iterative progress with tools and capabilities being developed and rolled out in distinct phases. As a consequence of this approach, different parts of the system are at different stages of development.

The investment the SCTS has made in digital systems, and the changes that have been made to court procedures have enabled the following:

• Use of electronic documents as standard in all cases and courts;
• Digital internal case management as standard in all cases and courts;
• Development of an online claims platform (Civil Online) for the online submission and procedural progression of claims;
• Submission of documentary evidence on a collaboration platform; and
• Conduct and management of virtual hearings.

At present, Civil Online, the online claims platform is only available with full functionality for Simple Procedure claims (small claims). It is available for certain other cases with more limited functionality. However, it is intended that the system will be fully rolled out to all cases and courts in due course.

The SCTS’s approach to date has focused on digitalisation of the existing civil justice model (based on pleadings, evidence and hearings) rather than looking at a more radical overhaul that would alter the fundamental approach to dispute resolution. 

The digital measures currently available in the Scottish courts cover the whole lifecycle of the case from submission of the claim, through all steps of the process, to the ultimate evidential hearing.

Specific tools used by the courts include:

• ICMS (Integrated Case Management System) – to manage court processes and hearings;
• Civil Online – online submission and progress of claims (only certain cases, to be rolled out more widely);
• Objective Connect – collaborative platform for sharing documentary evidence; and
• Cisco Webex – video conferencing platform.

Use of these tools is now widespread. Some are available for all cases, while others have not yet been fully rolled out. Where the tools are available, they are used as standard unless there is reason not to do so, for example, where one party is digitally disadvantaged.

In addition to the tools used by the courts, law firms use a variety of tools to assist with litigation processes. An example would be the tools used in document review exercises. These tools enable targeted, automated searches to be carried out on large datasets, identifying relevant documents, grouping these, and disseminating these to specialist teams for review. The Scottish courts are familiar with these tools since the parameters of the searches undertaken will frequently be discussed in case management hearings. 

There are few explicit statements in rules and guidance on whether particular processes are mandatory or not. However, the general expectation is that parties and their legal representatives will work with the digital tools and processes that have become the default approach.

One notable exception is that the use of Civil Online for Simple Procedure claims has been made mandatory, however, even then an exemption may be requested by any party who feels unable to use it. This reflects the SCTS’s repeatedly expressed recognition that some parties who wish to access the courts may not have access to or be confident with technology.  

Do you consider your jurisdiction to have a fully digitalised litigation process in place? If negative, state which elements are lacking for fully digitalised litigation.

The Scottish courts are not yet fully digitalised. However, the SCTS is in the process of creating a fully digitalised version of the existing civil justice model. By this we mean that digital tools and processes have been, or are being, put in place for:

• submitting claims and defences;
• submitting evidence;
• case management and procedural progress; and
• conducting and managing hearings digitally.

At the present time, and unlike some other jurisdictions, such as England & Wales, there are no digital reforms currently proposed that would radically change the current and long-established adversarial model used by the Scottish courts.

Early in the COVID-19 pandemic, temporary primary legislation was introduced by the Scottish Parliament to enable the courts in Scotland to continue to operate during lockdown. This included widely framed provisions that allowed courts, parties and lawyers to work with all and any documentation electronically and to effectively conduct virtual hearings remotely in all cases.

As lockdown measures eased, the Scottish Government and the SCTS moved into a “lessons learned” phase, issuing public consultations on the impact of the temporary legislation and changes to court processes. There was strong support for a continuation of the measures introduced in the temporary legislation and for the continued use of virtual hearings in appropriate cases. Following the expiry of the temporary legislation, this was substantially recreated in the Coronavirus (Reform and Recovery) (Scotland) Act 2022.

While the 2022 Act is also temporary, indications are that the provisions will be gradually replaced by permanent legislation and/or revisions to the court rules following full consideration of the issues presented by the relevant bodies, such as the Scottish Civil Justice Council (SCJC). At the time of writing, new court rules have been approved that will replace certain provisions in the 2022 Act on virtual hearings. These are expected to come into force in around July 2023.

Only one workstream of cases in the Scottish courts currently uses the full functionality of the Civil Online system: Simple Procedure cases. The system has been in use for Simple Procedure cases for a few years now, and during that time, various upgrades and changes have been made to the system to improve its operation. The SCTS holds regular update demonstrations and has engaged directly with the legal profession both to educate and obtain feedback on the system. The intention appears to be to streamline and, so far as possible, perfect the platform before rolling it out to other workstreams. 

No, not as yet.

At a general level, law firms ought to be operating in a manner compliant with (i) their duties of confidentiality to their clients, and (ii) other relevant legal obligations, such as those in relation to personal data in the Data Protection Act 2018 and UK GDPR. The context in which litigation is conducted is thus one in which there are already measures in place in relation to security of information.

In addition to this, the Scottish courts have put in place certain technical measures to protect the security of information in relation to their operations and the platforms operated by them. Notable examples include:

• Measures related to the use of the Objective Connect platform for the lodging of documents. This platform creates a workspace for each case with access restricted to (the solicitors acting for) the parties to the case. Access is provided by way of an individual link and two-step verification. Workspaces are automatically closed six months after an action is disposed of; and
• Measures related to the use of Cisco Webex for video hearings. Representatives require to log in to hearings using case specific details provided by the court. Separate login details are provided for those attending merely to observe the hearing (in accordance with open justice principles). Such observers, however, are unable to participate in the hearing.

A key risk for business is class action risk. The Scottish courts introduced a class action procedure (Group Procedure) in July 2020. Currently, this operates as an opt-in process but the Scottish Civil Justice Council has indicated an intention to consider the introduction of an opt-out process in addition to this. The availability of such processes invariably attracts attention from claims firms. 
The availability of digital tools makes it significantly easier for claims firms to find potential claimants (e.g. by using online advertising), and to obtain their agreement to sign up to opt-in claims (e.g. by utilising easy-to-use online forms on their websites) to recruit claimants.

Digital tools also make it easier for claims firms to track and identify claims opportunities whether these relate to one-off events, such as cyber breaches or product recalls, or in relation to regulatory failings that may give rise to a right to compensation.

Businesses also face increased risks in relation to information security in the conduct of litigation. It is now commonplace for document recovery exercises to be conducted using technology, with large datasets being reviewed using digital tools. When working with large datasets and automation, there is an increased risk of inadvertent disclosure of material that is not disclosable and that may damage the business. This risk can be dealt with by careful design of the process, and in recent years this has developed into one of the key specialist skills of large litigation practices.

The SCTS’s Digital Strategy includes objectives focused on digital access to information and digital tools to improve access to legal services. In particular, the SCTS is committed to:

• Provision of general information related to dispute resolution options and links to independent advisers and professionals who can assist potential litigants;
• Provision of interactive online systems and dispute resolution tools for particular cases;
• Digital access to information in particular cases; and
• Provision of technical information and guidance on the digital tools used by the courts.

The SCTS has made reasonable progress with these objectives, for example, by the development and partial roll-out of Civil Online, and by the development of website content providing advice and information.

At the time of writing, there are no active proposals for the introduction of any other tools, such as legal chatbots.