Getting the courts moving again

The decision of the Scottish Courts and Tribunal Service (SCTS) to postpone all non-urgent hearings due to the Coronavirus pandemic came as a major blow to parties who had been anxiously awaiting a resolution of their case. Cases that may not have been urgent as far as the courts were concerned certainly felt urgent to the people involved. Well, we have some good news.

On the 29th April 2020 SCTS issued new Guidance providing that cases in the Sheriff Court which were previously “sisted” (that is to say postponed indefinitely) can potentially be restarted. You can find the Guidance here in our weekly COVID-19 update. This is a huge step forward from the blanket freeze on all non-urgent cases, although SCTS are clear that the updated Guidance does not herald a return to business as usual.

The court will only grant applications to restart cases ‘where the court is satisfied that there is good reason why the action should be restarted and that the action can be progressed remotely without recourse to a hearing which requires the leading of evidence’. This latter component is causing much discussion in our office Teams chats and my colleague, Alison Edmondson, is going to write a separate piece on that. There will be matters where evidence from a witness at a hearing won’t be required for the case to progress though- like undefended divorce applications- and we are now getting on with them, with our first applications being made this week.

In terms of the practicalities, ‘Prior to making an application, the applicant shall explore with the other parties to the action whether a position on restarting the action and further procedure can be agreed or if not the extent to which there are disputed matters.’ The Guidance provides the style to be used for the application to restart and details what information needs to be contained in the application. Once the application has been intimated the other party (or parties) need to either indicate their consent or set out why they oppose the restart. If the application is successful, the sist will be recalled (the freeze will be lifted) and the action can proceed.

It is unclear how long these applications may take to be determined, and presumably much will depend on the nature of the case and whether the application to restart is opposed or not. We will also have to wait and see how the court administration manages with these applications, given that they continue to run with skeleton staff, and sheriffs’ availability may well be restricted.

We should however breathe a collective sigh of relief, following weeks of uncertainty, that progress (for some) can be made at last.