Can a clinical negligence trial be heard remotely?

9 June 2020 by

SC (a child, suing by her mother and litigation friend, AC) v University Hospital Southampton NHS Foundation Trust [2020] EWHC 1445 (QB)

Since lockdown the courts (and legal representatives) have been striving to hold remote hearings where possible. This had led to a flurry of new guidance (see for example CPR section AA Guidance for Queen’s Bench Division Court Users) — and the ability to view bookshelves in the studies of judges and legal representatives.

This interesting case considers the fairness of proceeding with a clinical negligence claim remotely. In SC, an application was made to adjourn a clinical negligence trial on the basis that it would be impossible for a hearing to take place in court and a remote hearing would be unfair. Mr Justice Johnson dismissed the application, concluding that the hearing could proceed in court and, if a remote hearing was required, then it could proceed in a manner that would be fair.

(a)   The background

This multi-million pound clinical negligence claim arose from events dating back to January 2006 when the claimant was 15 months old. She was admitted to hospital on 26 January 2006 with a high temperature and was discharged. However, five days later she was readmitted and was diagnosed with meningitis, and subsequently developed hemiplegic cerebral palsy. The claimant, now 15 years old, alleged that the defendant clinicians were negligent in failing to establish on 26 or 27 January that she was suffering from a serious bacterial infection.

(b)   The application

The application was made 10 days before the trial was to begin. Legal representatives for both sides, as well as many of the factual and expert witnesses were prepared to attend court: the remainder would give evidence remotely.

However, on the premise that a court hearing would not be possible, the defendant argued that a remote hearing would be unfair. The advocates would be unable to “visually to assess witness demeanour, judicial approach to evidence as it is given and the reactions of others at the same time as questioning in a way that occurs in a physical courtroom”. Further, the witnesses would be unable to give accounts face-to-face, nor would it be possible for legal representatives to take instructions from their clients or discuss matters of expert this during the course of evidence. The defendant’s leading counsel and witnesses also did not have any experience of a virtual trial [9].

The claimant resisted the application because it was made too late; the case has already been adjourned once; additional costs would be incurred; and that a trial in the courtroom ought to be possible but if not, a virtual trial would still be fair.

In his judgment Mr Justice Johnson considered whether the case should be adjourned, whether a remote hearing would be fair and feasible, and whether a court hearing could go ahead.

(c)    Whether the case should be adjourned

The judge dismissed the claimant’s costs argument because the case was fully prepared for trial and the additional costs would not be disproportionate to the high value of the claim. He agreed that the application had been made late, but that in itself was insufficient to dismiss the application: the defendant had delayed making the application, hoping a hearing in court would be possible thereby obviating the need for a hearing at all. However, any further delay in the trial taking place is highly undesirable, and if it were adjourned “there can be no certainty as to when it will be heard” [14]. He therefore concluded that the overriding objective would not be served by granting the adjournment.

(d)   Would a remote hearing be fair?

The judge went on to consider whether a remote hearing would be fair. He noted that there were many cases where remote hearings had taken place in a way that is fair to the parties. Although there have been no court hearings in the Queen’s Bench Division since late March, the number of Queen’s Bench Division judgments published in Bailii in April and May 2020 exceeded the number of judgments published in April and May 2019. He also highlighted the diversity of the issues covered in remote hearings, everything from libel to landlord and tenant to an appeal from a strike-out in a clinical negligence claim. In addition, there had been remote witness trials [18-19].

The defendant relied on the decision of the President of the Family Division, Sir Andrew McFarlane, in Re P (A child: Remote Hearing) [2020] EWFC 32. The President adjourned a 15 day final remote hearing where there were allegations of significant harm caused to a young child as a result of fabricated or induced illness by her mother. He concluded that the judge would be unable to observe the mother properly over Skype, reducing her to a “postage stamp image” which was a very poor substitute for seeing the person fully. Further, it assumed that the person’s video link is maintained throughout with the court. He concluded that in this “narrow context” a remote hearing would not allow for effective participation for the parent or effective engagement between the parent and the court [21-22].

However, Johnson J distinguished a public law family case (involving child abuse, which required extremely sensitive handling, and the welfare of a child) from a private law claim for damages, and concluded that, in the latter case, the risks could be managed.

(e)   Should the hearing be conducted remotely?

Whilst this hearing could be done remotely, Johnson J recognised that it would be undesirable “having regard to the likely length of the hearing, the nature of the issues, the volume of written material and the complexity of the lay of expert evidence” [26].

Also, an expert for the defendant was concerned that a remote hearing would be unfair because his ability to communicate with the defendant’s legal team would be significantly impeded and his professional reputation was on the line. It was also argued that the losing party may be left with a feeling of injustice as a result of the remote hearing.

The judge cited the Nuffield Family Justice Observatory research on the use of remote hearings in family courts during the Covid-19 pandemic (but which also had application more generally), which concluded that many of the lay participants felt they had not had a fair hearing. He therefore concluded that a remote hearing should not take place unless a court hearing is simply impossible.

(f)     Could the hearing be conducted in court?

The judge then considered the legality, safety and practicality of the hearing taking place in person:

  • Legality — there is no legal prohibition on the hearing taking place in court, as it is expressly permitted under regulation 6 of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020/350 (as amended with effect from 1 June 2020) [34];
  • Safety — it has not been argued that attending the hearing give rise to a risk to the safety of participants;
  • Practicality — some jury trials are already taking place in the Crown Court with social distancing measures. Consequently, “if a jury trial can be conducted then it is difficult to see a practical impediment to a non-jury civil trial” [36]. No one had provided a convincing reason why a court hearing the following week would not be practicable with appropriate social distancing measures.

(g)    Determination of application and directions for hearing

The application was dismissed because it was predicated on the hearing being conducted remotely and, given it could be heard in court, there was no reason why it would be necessary to have a remote hearing. In any event, if it could not be heard in court, a remote hearing would be conducted with directions given so as to ensure fairness to all parties.

(h)   Discussion

This case sets a precedent for high value clinical negligence trials proceeding remotely. It is notable that a significant amount of time had passed since the alleged negligence, and the child’s disabilities were severe. Clearly there was a need to bring this case to a conclusion, especially as there is no end in sight to the Covid-19 restriction measures.

It is not as satisfactory as a court hearing in person, and the issues raised by the Nuffield Family Justice Observatory do rightfully give rise to concerns. However, the courts are endeavouring to administer justice in a manner that is fair to all parties in these extraordinary circumstances. Given that lockdown is set to continue for the foreseeable future, with some witnesses or experts unable to attend court for medical reasons, this is likely to become the ‘new normal’.

Caroline Cross is a barrister at 1 Crown Office Row

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