21st Century Bar Conference hears LJC’s vision of major change

The Lord Justice Clerk, Lord Carloway, has predicted a revolutionary change in civil procedure, stating that “the days of the lengthy proof with oral evidence will soon be over.” 

Lord Carloway said that with greater use of recorded testimony, court hearings could become restricted to the oral submissions of lawyers.

“The courts must move with the times and embrace a system which is consistent with modern advances,” Lord Carloway said in a keynote address to the 21^st Century Bar Conference in the Faculty’s Mackenzie Building.

The conference is a joint event between the Faculty and the Law Society of Scotland’s In–House Lawyers’ Group (ILG).

Lord Carloway said: “Court reform is never complete. Our courts must be ready to adapt and respond to progressions and innovations in society.”

In relation to the digital revolution, he said that a paperless litigation system had been all but achieved in many jurisdictions, Singapore being the classic example.

He said the Scottish system of proof, founded on the primacy of oral testimony, was a “mode of inquiry inherited from the Victorian age when there was a need for litigants, their representatives and witnesses to appear before the courts at the cited time and place.”

He added: “…in our age of technology, we must grasp the possibility that, in the future, evidence might be presented to the court in a quite different, more modern manner. Today, what a person says can be recorded electronically and accurately at any time in audio and video format. Events can be caught, contemporaneously, on CCTV or on portable devices.”

Lord Carloway envisaged recorded evidence being studied by the judge and a hearing in court restricted to oral submissions.

“The judge, having had the opportunity to digest the evidence in advance, would be in a better, more informed position to engage with parties’ submissions. The diet itself would be much shorter, reducing expense and waiting times for substantive hearings in other cases, thereby increasing the accessibility of the civil courts.

“The days of the lengthy proof with oral testimony will soon be over. Such diets are time-consuming, expensive and unnecessary.”

The conference programme featured contributions by senior and junior counsel on employment law (Graeme Dalgleish), intellectual property (Kathryn Pickard), public procurement (Ruth Crawford, QC), contract law (Ross Anderson), legal professional privilege (Alastair Duncan, QC), court reforms (Andrew Stewart, QC), data protection (Morag Ross), company law (David Sellar, QC) and proceeds of crime (Bryan Heaney).

Lord Carloway’s speech is here