In his judgment Mr Justice Johnson refused the defendant’s application for an adjournment on the grounds that a clinical negligence trial held remotely would be unfair. Held that the trial could go ahead in person and even if the trial had to held remotely it could still be done fairly. Practitioners in Clinical Negligence and Personal Injury should be interested in the judge’s assessment of whether a remote hearing could be managed fairly for all parties, including the medical experts. The case also deals with an assessment of whether the trial could be conducted in court. Considering the legality, safety, and practicality of doing so.
SC (a child, suing by her mother and litigation friend) v An NHS Foundation Trust  EWHC 1445 (QB)
What are the practical implications of this case?
The case explores how a remote hearing can, with careful case management, take place in a way that is fair to the parties. Although there are disadvantages with any remote hearing they would impact on all parties and the risk of unfairness can, if necessary, be sufficiently addressed and managed by the trial judge. It is notable that the court considered that the experts and clinicians involved are experienced professionals who are well-used to communicating in difficult and stressful conditions. In all the circumstances the judge considered that a remote hearing would be fair.
Even if a case can be heard remotely it does not automatically follow that it should be. The judge acknowledged that a remote hearing is a significant departure from the familiar system of civil trials and the court would have to have regard to the length of hearing, the nature of the issues, the volume of written material and complexity of the lay and expert evidence. Suitability for a remote hearing should be addressed on a case by case basis.
There was no legal prohibition on the hearing taking place in court. There was no argument that attendance would give rise to a risk to the participants save one witness who would give evidence via video link. There was no practical reason why the hearing could not take place in court and could be accommodated with appropriate social distancing measures.
What was the background?
The claimant was bringing a clinical negligence action following events that arose in 2006 when she was 15 months old. The trial was due to take place in January 2020 but was adjourned due to the ill health of one of the claimant’s expert witnesses. The adjourned trial is due to start on the 8th June. Most of the legal representatives are able to attend as are the lay and expert witnesses, except for one expert who could not attend for health reasons but was able to give evidence via video link.
The defendant applied for an adjournment on the basis it being impossible for a hearing to take place in court and that a remote hearing would be unfair.
What did the court decide?
Mr Justice Johnson refused the defendant’s application to adjourn on the grounds that a trial held remotely would be unfair. He distinguished the decision of the President of the Family Division in Re P (A child: Remote Hearing)  EWFC 32 on the basis that the observations made in that case were “in the narrow context of this being an allegation of [fabricated or induced illness] and noted that the nature of a private law civil action in clinical negligence for damages is very different from a public law family case involving such allegations. In the circumstances of this present case any risk of unfairness could be addressed and managed by the trial judge.
However the judge had regard to the likely length of hearing, the nature of the issues, the volume of written material and complexity of the lay and expert evidence and indicated that a remote hearing would be undesirable.
The judge then considered whether the hearing could be conducted in court and considered the legality, safety and practicality. The Health Protection (Coronavirus, Restrictions) (England) explicitly permits attendance at court (including staying overnight away from home in order to attend court) – see regulations 6(1) and (2)(e) and a court hearing does not infringe on gatherings – see regulations 7(1)(b) and 7(2)(e). In the circumstances the hearing was not unlawful and could be heard in court with appropriate social distancing and the application was dismissed.
This article was first published in LexisPSL.
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