The Role of the Edinburgh Agent in a Post-Pandemic world

I have been reflecting on the decision of Lady Wise in HAJ -v- NJ & Others published last month. While the fact that it concerned a lottery win might have been why it grabbed the headlines, the case also revealed some useful lessons for our new, post-Covid world of “electronic” hearings.  Here’s what I learnt as the instructed Edinburgh Agent.

At the time of raising this case, the Covid-19 pandemic was but a footnote, confined to the other side of the hemisphere. As such, I was instructed in a classic Edinburgh Agent role, which meant personally attending the Court of Session to arrange for summons to be signeted and the pre-service hearing.

Following the advent of the pandemic in Scotland, drastic changes were obviously implemented by the Scottish Courts & Tribunals Service and the action more or less proceeded digitally, with remote hearings.

I think many anticipated that the Edinburgh Agent’s role may no longer be required, but my sense was that it was still useful in the management of this multi-faceted and ever-developing dispute. Even with the switch to remote working, which removes the geographical necessity that previously dictated the appointment of local agents, my sense is that clients still benefit from the added value of having an Edinburgh agent. We know who the clerks are, how the court wants documents prepared, lodged and handled during hearings, and there is always something to be said for a extra pair of hands when it comes to a Proof running.

One of my favourite aspects of being instructed as Edinburgh Agent is being able to foster and develop co-working relationships with colleagues from other firms.  It is a great opportunity to work with and assist principal agents. What local agents want from us varies hugely- some very much want a continuation of the traditional ‘post-box’, Court of Session service, whereas others prefer to hand the procedural aspects over to us, with them retaining the direct client contact.  I like being able to work with other solicitors as a part of a team, rather than other solicitors always being on the other side!

In this matter the local agents very much retained control of the case and worked with the client and Counsel to make and take the important judgement calls, and guide the direction of the case. They looked to me to focus, and deal with, the logistical side of things, for example ensuring documents were prepared and lodged on time in accordance with developing guidance from SCTS.

Team-working became particularly effective in the immediate run up to proof, and of course the virtual proof itself.  We are all too aware of the intensity (for clients and principal agents) in the run up to proof, and emotions can heighten. Instructing local agents allows appropriate (and cost effective) delegation: I managed the court deadlines and motions, ensured affidavits, productions, the core bundle and record were all lodged on time. This gave the principal agents breathing space to focus on the client and manage important issues with them.

During remote proofs all agents now must contend with the concept of screen sharing to assist the court when witnesses are giving evidence. It turns out that, although it sounds straightforward, managing the practicalities is a little more complex.

Counsel, my principal agent and I discussed how we would manage the logistics and we agreed that it made sense for me to attend the proof solely to deal with the screen-sharing.  This turned out to be a wise choice in that the attention to detail and care was required to make sure the correct production was exhibited at the right time (without email pop-ups etc!) was more onerous than we had all anticipated.  It is important to liaise with Counsel as to what productions will be needed, and to ensure that they are clearly named and easily accessible. Close attention must be paid to the indirect (or sometimes quite direct!) guidance from Counsel as to what production to share, when, and ensuring you stay on the right page.  Efficient screen-sharing helps proceedings run smoothly and aids the flow of evidence. As with numbering productions, if you don’t get it right you may lose the flow of evidence or, worse, risk losing the patience of the court. 

The decision to ensure we got the screen-sharing and other practical mechanics correct did not go unnoticed- as was said by Lady Wise in her judgment, this was a case where, "a number of connectivity and other technical issues arose during this lengthy proof conducted using a video conferencing medium". Even in our new way of working the role of Edinburgh Agent still has something to offer when running large Court of Session actions. 

Note by Ed: Although Catriona is to modest to say it, her Ladyship noted in her judgment that, "I was particularly grateful to the pursuer’s agents [all Catriona] for their assistance with screen sharing the documents produced during the evidence so that the proof could continue without further interruption."