Mr Justice Johnson has handed down Judgment in an application which may have important implications for the hearing of trials in this Covid era.

This was a clinical negligence case, the alleged negligence having taken place as long ago as 2006.  The Claimant is a minor however and proceedings were not therefore issued until July 2017.  The case was listed for trial in January 2020 but was adjourned due to the ill-health of a witness.  The case was therefore re-listed for trial in mid-June.  The Claimant said the case had a value of several million pounds.

Unlike so many cases at the moment, the matter remained listed and was due to be heard remotely.  The Defendant made an application for a further adjournment of the trial on the basis that this was not a case that was appropriate for a remote hearing.

The case has five witnesses of fact and four experts – two for each party in two disciplines.  The Judgement does not make clear the estimated length of the trial but it is clearly several days.

The application to adjourn was predicated upon it being impossible for a hearing to take place in court.  Defendant’s Counsel, argued that a remote hearing would be unfair. She said that the advocates 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.” Moreover, she argued that the Defendant’s clinicians, who are subject to stringent criticism on behalf of the Claimant, would not be able to give their accounts “face to face with the communication possible between multiple parties”.  It was also argued that it would not be possible for the legal representatives to take instructions from their clients, or discuss matters with the expert witnesses, in the course of evidence being given. Finally, it was argued that the Defendant’s leading counsel and witnesses did not have any experience of a virtual trial.

The Claimant opposed the application.

The Court considered the Claimant’s argument that an adjournment would cause the parties to incur disproportionate costs.  Given the value of the claim, the Judge dismissed that argument.  Neither did the Judge think that the application had been made too late, despite only being made on 28th May.  He recognised the exceptional circumstances of the times.

The Judge noted that the case concerned events which took place 14 years ago.  He was also greatly concerned that, if adjourned, the case may not be able to be heard for a substantial period of time.  He further noted the stress to the clinicians involved and the urgent need for the Claimant’s parents to know whether they would be able to fund the Claimant’s education with compensation.  The Judge therefore concluded that, so far as the overriding objective was concerned, these factors militated against the granting of an adjournment.

He went on to consider the issue of whether there could be a fair trial.  The Judge noted that there would be some circumstances which would mean a remote hearing could not be fair.  If there was unequal access to the technology for example but he noted that, since March, an increasing number of remote hearings had taken place.  He observed that only one clinical negligence trial had taken place remotely but that this was largely due to the unavailability of clinicians to give evidence and because other cases had taken priority.

The Judge noted that any disadvantage which might arise as a result of the hearing being held remotely, fell evenly on the parties.  He concluded that the Judge could case manage the trial in such a way as to ensure that, if held remotely, it would be fair.

Having noted that the trial could be fairly and properly conducted remotely, he nevertheless concluded that, if possible, it ought not to be conducted remotely.  He concluded:

“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. A video-conference is necessarily two dimensional and permissive only of bilateral communication and observation.  For some types of case a satisfactory hearing can nevertheless take place, as the work that has been done by the courts since late March demonstrates. For other types of case a remote hearing would be wholly inappropriate. 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.”

Having considered the current Covid Regulations, the Judge concluded that a live hearing could take place legally and safely.  If it proved impossible to find a Court room however, the case would be heard remotely.

Finally, the Judge noted that he had given directions in the event that the trial had to take place remotely.  These are unspecified in the Judgement but he noted the matters that they addressed:

“I have made contingent directions in case it turns out that the hearing has to be conducted remotely. These include directions that seek to accommodate the many concerns that have been expressed by the Defendant about the fairness of a remote hearing (so they include, for example, 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).”

Having concluded that this trial could take place remotely therefore, the Judge nevertheless noted the many disadvantages of it being heard in that way.  On balance however, a remote hearing was preferable to an adjournment which might be for as a long as a year.  This clearly weighed heavily on the Judge’s mind.  One can assume that the Judge’s decision might well have been different had there been a less urgent need to have the mater resolved.