Our Dispute Resolution team in Scotland has today completed the last day of evidence in the first proof to physically take place in the Court of Session since lockdown took hold in March this year. The format was a “blended proof” with some witnesses giving evidence physically in court and others giving their evidence remotely by WebEx.

Social distancing aside, it almost felt like "business as usual" within the court room itself.

However, there are some practical issues that should be borne in mind whilst conducting litigation in person during the COVID crisis.

Our key points to bear in mind are as follows:

  1. Counsel, agents and witnesses are required to wear face masks in the court building but required to remove them in the court room.
  2. The judge will reassure witnesses of the measures that have been taken to deep clean the court and the witness box between witnesses giving evidence.
  3. The default position is that witness evidence will be taken electronically, unless compelling reasons exist for a witness giving evidence in person.
  4. To avoid placing reliance on local WiFi, the joint bundle and witness statements should be saved locally to a laptop to ensure those documents can be accessed "offline".
  5. The Court of Session uses VGA connectors to link laptops to its hard-wired IT system. This is of particular importance standing the degree of reliance currently placed on electronic copies of the joint bundle. Some laptops do not have VGA ports so the use of a VGA to HDMI adaptor may be necessary.
  6. In this case, agents controlled the joint bundle. It is sensible to ensure that the documents to be shown on the court's screens can be easily navigated, orientated and increased in size in accordance with the wishes of witnesses.
  7. Any documents which emerge during the hearing itself should also be available "offline" in electronic form to prevent witnesses/court staff from physically handling documents.
  8. Where a witness is to be heard by "WebEx", the clerks of court (very helpfully) run test sessions with agents and future witnesses to ensure no IT issues are encountered on the day evidence is to be given.

Despite being the first "pandemic proof" to take place in the Court of Session, the hearing progressed relatively smoothly, all things considered.

We would like to thank all of the court staff for the considerable efforts made to ensure that this case could be heard, notwithstanding the substantial logistical challenges commercial activity of all types continues to face in the current climate.