A clinical negligence hearing is set to begin in person in the High Court today, although the judge ruled last week that it could be conducted remotely if there was no other option.
Mr Justice Johnson was asked by the defendant in SC v University Hospital Southampton NHS Foundation Trust (Rev 2)  EWHC 1445 (QB) to adjourn the hearing on that basis that it was going to be held remotely.
But the judge, noting that “if a jury trial can be conducted then it is difficult to see a practical impediment to a non-jury civil trial”, said nobody had provided a “convincing reason” why a court hearing was not practicable.
“I have spoken to court staff who, very helpfully, are confident that a hearing next week can be accommodated with appropriate social distancing measures.”
The case is listed to start at 2pm today. It concerns a multi-million pound claim that, had the defendant hospital in 2006 diagnosed the serious bacterial infection that the claimant – then 15 months old – had caught, she would not a few days later have suffered from meningitis and subsequently developed hemiplegic cerebral palsy.
Nonetheless, while “three months ago, a remote hearing of a clinical negligence trial would have been almost unthinkable”, the judge was prepared to hold the case remotely as a last resort.
Johnson J was concerned that, if the case were adjourned, there was no certainty as to when it would be heard, to the detriment of both the claimant, her family and the defendant’s clinicians.
Thus the overriding objective militated against the grant of an adjournment, subject to whether the hearing could fairly take place.
Johnson J noted that “it is striking (and an indication of the proportion of court business that has continued to be undertaken) that the number of Queen’s Bench Division judgments published by Bailii in May 2020 exceeds the number of judgments published in May 2019 (and the same is true of April 2020 compared to April 2019), although some of the underlying hearings took place in court before the end of March”.
There have been remote hearings in cases ranging from libel, enforcing a judgment and worldwide freezing injunctions, to landlord and tenant, and clinical negligence.
Here both parties were legally represented and all witnesses have access to the technology required. “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,” Johnson J said
But while the hearing could be conducted remotely in a way that is fair, this did not mean in should be.
“There are many reasons why such a hearing, in this case, would be undesirable. A remote hearing is a significant departure from the familiar system of civil trials that has operated for centuries. That system is designed to deliver justice.
“A hearing that is wholly remote lacks many of the features and benefits of a hearing that takes place in court. The solemnity, formality and focus of the courtroom is not easily replicated by a remote hearing.
“More importantly, 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…
“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.”
The judge acknowledged the concerns of one of the clinicians under scrutiny who felt he would not be able to give “as full and rounded and effective an account of his actions by video-link as he would in a face to face hearing”, and that his ability to communicate with the defendant’s legal team would be significantly impeded.
The danger of the unsuccessful party being left with a feeling of injustice because of the manner of the hearing chimed with the findings of the Nuffield Family Justice Observatory, which looked into the use of remote hearings in the family courts during Covid-19.
Johnson J said: “For these reasons, even though a hearing can fairly take place remotely, I do not consider that it should do so in this case unless a court hearing is simply not possible.”
He made case management directions on the basis that the hearing would be conducted in court – including timetabling speeches and witnesses so as to reduce the number of people who have to be in court at any one time – along with contingent directions in case it turns out that the hearing has to be conducted remotely.
These included breaks between witnesses for the parties to give, or the lawyers to seek, instructions, breaks during the court day so as to limit the amount of continuous screen time for participants, and steps to ensure that all witnesses and legal representatives have easy access to the same, agreed, court bundle.
HM Courts & Tribunals Services today announced that 16 more court centres were opening today for socially distanced hearings.
They are: Romford Magistrates’ Court, Barnet Civil and Family Centre, Derby Combined Court, Chesterfield Justice Centre, Mansfield Magistrates’ and County Court, Bolton Combined Court (Crown only), Southend County Court, Horsham Law Courts, Canterbury Combined Court, Aylesbury Crown Court, Portsmouth Magistrates’ Court, Salisbury Law Courts, Swindon Magistrates’ Court, Newport Crown Court, Merthyr Tydfil Combined Court, and Llandudno Magistrates’ Court.