This article originally appeared in a Covid-19 Special Issue (July 2020).
The Defendant Trust applied a week before a clinical negligence trial for its adjournment on the basis that it would be unfair to hold the hearing remotely by video. The application was refused.
The Claimant had developed hemiplegic cerebral palsy as a toddler secondary to meningitis. The allegation was of a failure to diagnose a serious bacterial infection. The issues of fact included how the Claimant had presented, and what was said by her parents to the clinicians involved.
The trial had already been adjourned from January 2020 due to the ill health of the one of expert witnesses. There were 5 witnesses of fact – three clinicians and the Claimant’s parents, and 3 expert witnesses. Counsel and solicitors on each side were “ready, willing and (subject to the court being able to facilitate a hearing) able to attend court.” Most of the witnesses were also able to attend court next week. One expert witness was not able to attend court (because of health reasons) but was able to give evidence by video-link.
Mr Justice Johnson noted that the application to adjourn was predicated on it being “impossible” for the hearing to place in court. The Defendant argued against a remote hearing on the basis that counsel would not be able “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 clinician witnesses would not be able to give their accounts “face to face with the communication possible between multiple parties” and it would not be possible for the legal representatives to take instructions from their clients, or discuss matters with the expert witnesses, during the course of evidence being given. It was also stated that the Defendant’s leading counsel and witnesses did not have any experience of a virtual trial.
The Claimant resisted the application. She argued that the application had been made too late, and that if the trial was adjourned it was likely to be some considerable time before it was heard; the costs that would be incurred would be disproportionate; a trial in a court room ought to be possible but that, if it was not possible, a virtual trial would be fair (albeit there would be significant practical difficulties).
Mr Justice Johnson began by holding that any costs necessitated by adjournment would not be disproportionate given the high value of the claim. The case was fully prepared for trial. The question of costs would not therefore be determinative.
With regards to the lateness of the application (made on 28 May, i.e. some weeks after the COVID-19 restrictions on court hearings were imposed), Johnson J held that while the application had been made at a late stage, that had enabled more informed and focussed inquiries to be made as to the possible mechanisms for holding the trial. The Defendant also had argued that it was waiting and hoping that a hearing in court would be possible. The timing of the application was therefore also not determinative.
Johnson J held that any further delay would be highly undesirable – noting that it was 14 years since the events in question, and there were factual issues which could turn on the oral recollection of witnesses. He stated that “If it were possible to be certain that any further delay could be limited to a matter of a very few weeks – and if there were no alternative in order to secure fairness – then the overriding objective might compel the grant of a further adjournment.” However, there was no certainty as to when the case would be heard if adjourned.
He noted that both the clinicians and also the Claimant, and her family, would have the continued stress and uncertainty of the case hanging over them. Accordingly, provided a hearing could be heard fairly, the overriding objective militated against adjournment.
With respect to fairness, Johnson J held that:
“There are circumstances in which a remote hearing would not be fair. An example is where one of the parties is unable to access or effectively utilise the technology necessary to conduct a remote hearing.
Conversely, there are many cases where a remote hearing can, with careful case management, take place in a way that is fair to the parties. As a result of the Covid-19 pandemic there have been no hearings in court in the Queen’s Bench Division since late March. However, hearings have continued to take place, being conducted remotely rather than in court …
A number of witness trials have taken place remotely. Others have been adjourned, and, so far, only one clinical negligence trial has taken place remotely. That is not surprising. First, so far as clinical negligence trials are concerned, there was a compelling need to ensure that practising medical professionals were not diverted from their primary clinical responsibilities by the need to give evidence in civil proceedings. Second, other types of case (for example where liberty or the right to housing was at stake or there was a need for an immediate injunction) took a higher priority. That does not, however, mean that it would be unfair to try a clinical negligence claim remotely.
In this case, both parties are legally represented. All witnesses have access to the technology required to conduct a remote hearing. The disadvantages of a remote hearing would impact on all parties, but it has not been shown that they would do so in a way that is unequal or unfair to the Defendant…
I consider that the risk of unfairness can (if necessary) be sufficiently addressed and managed by the trial judge. The clinicians are experienced professionals who are well-used to communicating in difficult and stressful conditions (if not by video conference in a court hearing). Case management directions… can be imposed which ensure that the disadvantages of a remote hearing in this case are reduced as far as is possible.”
Having concluded that it was possible to have a fair remote hearing, Johnson J went on to consider whether it should be conducted remotely. He noted that there were many reasons why it was not desirable: the solemnity, formality and focus of a courtroom could not easily be replicated remotely; and more significantly “the complex multi-layered human communications and observations that take place during a substantial witness trial are significantly impeded when the hearing is conducted remotely.”
He concluded that “In this case, a remote hearing would be possible. However, having regard to the likely length of hearing, the nature of the issues, the volume of written material and the complexity of the lay and expert evidence, a remote hearing would be undesirable.” One key factor was that one of the clinicians did not consider that he could give as full and effective an account of his actions as in a face to face hearing, and would not be able to communicate effectively with his legal representatives. His “professional reputation, medical competence and, potentially, personal integrity are in issue.” Accordingly, the case should not be held remotely unless a court hearing was simply not possible.
With regards to practicality, Johnson J noted that there would be no risk to the safety of participants through giving evidence (save for the one witness who would give evidence by video link) following the HMCTS measures to ensure the safety of court users with appropriate social distancing.
Accordingly, the application was dismissed. It was predicated on the hearing being conducted remotely but there was no reason why it had to take place remotely. If there was an insurmountable obstacle to a physical hearing, then a fair remote hearing could be heard.
This decision makes it clear that parties will have to approach applications to adjourn clinical negligence trials simply on the basis of the COVID-19 restrictions with great caution – this is likely to be particularly so given the recent relaxation of those restrictions. Further, and with wider application in the post COVID-19 world where there may be a push to increase the number of remote hearings more generally, the decision also demonstrates that arguments against a remote hearing will need to be grounded in the facts of the particular case and be based on more than the inherent drawbacks of remote hearings generally.