Impact of the Coronavirus (Scotland) Bill on litigation in Scotland

Julie Hamilton considers the implications of the Coronavirus (Scotland) Bill that was introduced on 31 March 2020, explaining the relationship between this Bill and the UK-wide Coronavirus Act 2020 and highlighting some of the key provisions in the Bill before considering the impact the Bill will have on litigators in Scotland.

What is the relationship between the Coronavirus Act 2020 and the Coronavirus (Scotland) Bill?

The Coronavirus Act 2020 was published on 25 March 2020 and is a lengthy piece of legislation, covering the whole of the UK. It seeks to deal with the most pressing issues facing the UK. There are only a few specific Scottish provisions.

The Coronavirus Act 2020 deals with immediate, front line measures such as emergency registration of health professionals, registration of deaths and food supply chains. It applies for two years and gives power to the four governments in the UK to review and apply the powers as necessary. There is little, if anything, directly relevant to litigators in Scotland.

By contrast, the Coronavirus (Scotland) Bill (‘the Bill’) makes various important provisions for civil litigators. There is quite a lengthy Schedule affecting the justice sector.

What are the main provisions of the Coronavirus (Scotland) Bill affecting litigators?

Key points for civil litigators are:

  • allowance for electronic signature (including simple electronic signature) for all documents in the conduct of court business unless directed otherwise; and
  • service of court documents can be effected electronically

Schedule 4 is the relevant Schedule. Part 1 deals with ‘Courts and Tribunals: Conduct of Business by Electronic Means’. Paragraph 1 makes it clear that an ‘electronic signature’ fulfils any requirement that a document be signed, initialled or signetted (i.e. warranted or registered) to initiate proceedings, and similarly applies to an order, warrant, citation, minute or any other document produced by a court or tribunal. An ‘electronic signature’ is to include a version of an electronic signature reproduced on paper, in practice such as a jpeg or scanned image. This provision includes lodging documents at court, sending to a person or serving a document on a person.

It also provides in para 1(2) that service can be fulfilled by electronic transmission to a person or a solicitor engaged to act on the person’s behalf in the proceedings in question. Paragraph 1(3) makes it clear that the recipient must have indicated he or she is willing to receive the document, which can be express or ‘inferred from the recipient having previously been willing to receive documents from the sender in that way and not having indicated unwillingness to do so again’.

Paragraphs 2 and 3 of Part 1 respectively suspend the requirement for physical attendance at court or tribunal unless specifically directed by the court or tribunal and allow attendance by electronic means.

Other provisions to note are temporary modifications to the law on evictions from dwelling-houses (Sch 1), temporary extension of moratoriums on diligence (Sch 2) and in Sch 7 paras 6 and 7 changes to irritancy clauses in commercial leases (non-payment of rent and other sums due): the notice period is extended to a period of 14 weeks (rather than 14 days) and all previous notices served unless expired become void. The Coronavirus Act 2020 dealt with the equivalent provisions on forfeiture moratorium and protection from eviction in residential tenancies in England and Wales.

What impact will these provisions have on litigators and the courts in Scotland?

The key points noted above regarding electronic signature and service are practical provisions which will be welcomed by solicitors, as everyone in lockdown works from home and online.

In practice, this should be more straightforward on a solicitor to solicitor basis – it is not known how easily it may apply with unrepresented parties – it is not difficult to see that problems may arise. However, the intentions of the provisions are clear and seek to facilitate ongoing access to justice.

It is hoped that greater use of telephone or video hearings for procedural matters in court or tribunals will be seen as efficient and effective (if the technology is available). However, for hearings with witnesses it is not likely to be appropriate in many cases. It may prejudice the fairness of proceedings or otherwise be contrary to the interests of justice (specific exclusions for which the court or tribunal can issue directions).

In relation to the other provisions about irritancy and moratorium, this may frustrate landlords and their solicitors, but is part of a UK wide approach the governments have initiated given the economic crisis and uncertainty faced by everyone.

Interviewer: Nick Shannon

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