CLINICAL NEGLIGENCE TRIAL HELD REMOTELY: AND IT WORKED WELL…

I have highlighted some cases where remote hearings have had difficulties. In Jones v Ministry of Defence [2020] EWHC 1603 (QB) the judgment indicates that the remote hearing in a clinical negligence case worked well.

THE CASE

The case was a hearing on the issue of causation following admitted negligence by the defendant in failing to diagnose HIV earlier.

THE REMOTE HEARING

Richard Hermer QC, sitting as a Deputy High Court Judge, observed:

    1. When this matter was first listed for trial few would have anticipated that the state of the world as it currently stands. Steps to reduce the risk of infection, not least through social distancing, have meant that Courts have not been able to operate in the normal way. When his claim was issued, the Claimant would have been entitled to expect that his metaphorical ‘day in court’ would include attendance at the Royal Courts of Justice where he would be able to give evidence in the presence of his family and legal team and also watch as experts and other witnesses took to the witness box. Members of the public and the press would also have had an expectation that they would have been entitled to enter the Courts and watch trials such as this.
    2. This of course was not possible during lockdown but rather than adjourn the trial the parties were content for it to proceed by way of a remote hearing. The essential mechanics of the hearing were as follows:
i) The day before the hearing two short scoping exercises were conducted with the parties and their witnesses in order to ascertain which ‘video conferencing’ platform would be most suitable for trial. After testing both ‘Skype for Business’ and ‘Microsoft Teams’ a clear consensus was that Microsoft Teams appeared to be the most accessible and the most stable;
ii) At the outset of the hearing, I invited submissions on what accommodations should be made to take account of the fact that the hearing was being held remotely during a national ‘lockdown’ which might itself place added pressures on all participants. The parties sought (and I gave) breaks in between their respective questioning of witnesses in order to give and receive confidential instructions. I also agreed to permit a few additional uncontroversial questions in chief to the witnesses in order to take account of the unusual means of giving evidence;
iii) The Microsoft Teams platform permitted me to view all participants. As I explained to the parties, I ensured that my screen just showed either counsel (during submissions) or the witness and counsel asking the questions (during evidence). I had a large screen that was solely dedicated to the video conference (with the e-bundle on a separate screen). It enabled me to have a very clear view of a witness’ face although not of their body. I did not find that being unable to see a person’s body interfered with my assessment of their evidence. In large part this might be because this was not a case in which either party questioned the honesty or integrity of the other although even then, as has often been noted, reliance on body language as a guide to where truth lies can be notoriously unreliable and vulnerable to a range of biases. I also found that the format removed distractions from peripheral vision that can apply in a court room and intensified attention on the witness and what they were saying;
iv) The technology worked well throughout. The sound quality was generally excellent and when on the odd occasion a picture froze, or the sound clarity dropped, it was noticed by all and quickly remedied. The only exception to the smooth operation of the technology was in respect of one of the Defendant’s witnesses, Colonel Gill, who was unable to access any of the video platforms because of MoD security restrictions. The parties consented to taking his evidence by way of a telephone conference, and, whilst not ideal, this sufficed in circumstances in which the evidence of the witness was not of central importance;
v) The Daily Cause List published details of how public and press access could be gained to the trial. During the trial I received two requests for the media to be given access and one request from a member of the public. These were facilitated by sending them a ‘Teams’ invitation’ by email.
  1. Ultimately this format provided the opportunity for a fair trial because of the cooperation of the parties to ensure that it worked. The solicitors for the parties ensured that witnesses had the relevant electronic bundles and knew how to locate documents when asked to look at them during cross examination. They also ensured that witnesses were pre-warned about the need to take the oath with Bible or other Holy Book or affirm (in the absence of a Court Associate or Clerk) and were assiduous in ensuring that witnesses were available when required. The assistance and cooperation of counsel, Mr Wheatley and Mr Fortt, was invaluable and I record my gratitude to them.