WITNESSES AND REMOTE HEARINGS: HOW IS IT GOING? IT IS WORTHWHILE AS LONG AS THE TECHNOLOGY WORKS
I am grateful to John De Bono QC for sending me a copy of the judgment of HHJ Tindal in Freeman -v- Pennine Acute Hospitals NHS Trust, a copy of which is available here. Freeman v Pennine NHS Judgment 03.12.21(without password) (1) The judgment contains much of importance in relation to witness evidence and clinical negligence cases, this will be looked at in a future post. However it also contains an important discussion of witness evidence and remote hearings. This issue remains, and is likely to remain, important and worthwhile looking at first.
THE CASE
The judge was hearing a clinical negligence case where a child had been born in 2002 with Cerebral Palsy, the child had died aged 12. The case rested to a large extent on the evidence of lay witnesses. The claimant’s witnesses gave evidence remotely. The judge considered this issue in the early paragraphs of the judgment.
THE JUDGMENT IN RELATION TO GIVING EVIDENCE REMOTELY
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Firstly, as a Designated Civil Judge, I was extremely experienced in remote trials both of Fast Track and Multi Track claims during the Pandemic, including cases where credibility and reliability were central issues. I am entirely satisfied that if technology works, it is an entirely appropriate means of hearing evidence under detailed and intensive credibility cross-examination. I also sit in the Crown Court where cross-examination by video link in trials of sexual allegations is almost universal. I also referred to the pre-COVID example in Polanski v Conde Nast [2005] 1 WLR 637 (HL) where the House of Lords endorsed video-link evidence in a Civil Jury trial including highly contested cross-examination of the film director Roman Polanski who was perfectly capable of coming to the UK to give evidence in his own Defamation claim but did not wish to because he would be extradited to the US to face serious criminal charges. Almost 20 years ago, Lord Nicholls said at p.14 (characteristically presciently, especially in the light of events over the last 20 months):
“Improvements in technology enable Mr Polanski’s evidence to be tested as adequately if given by
as it could be if given in court. Eady J, an experienced judge, said that cross-examination takes place “as naturally and freely as when a witness is present in the court room”. Thomas LJ said that in his recent experience as a trial judge, giving evidence by VCF is a “readily acceptable alternative” to evidence in person and an “entirely satisfactory means of giving evidence” if there is sufficient reason for departing from the normal rule that witnesses give evidence in person before the court.”
Similar views have been expressed during the Pandemic, including by Johnson J in SC v Southampton NHS [2020] EWHC 1445 (QB), a clinical negligence case (although that was the height of the first lockdown when the issue was attendance at court generally, which he found could be arranged). SC was cited very recently in allowing a witness with an underlying health condition not to travel to the UK to give evidence on an allegation of forgery: Rahbarpour v Said [2021] 11 WLUK 159. DHCJ Ambrose there rightly observed that whether to permit evidence remotely was a matter for the court’s discretion in the light of the overriding objective, fairness and efficiency, and the need for equality of arms between the parties under ECHR art.6.
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Secondly, I agreed to the Claimant giving evidence remotely because on the evidence of her solicitor Mr Thomas (supported by her medical notes in the bundle), she was plainly ‘vulnerable’ not only on health grounds to Coronavirus but in the sense that her health may adversely affect her giving evidence, so enabling her to give evidence remotely was a direction to facilitate her participation under the new ‘vulnerability’ provisions in CPR PD1A. Whilst Mr Orton does not have underlying health conditions and so is not himself ‘vulnerable’ medically, it is well-known clinically-vulnerable people are at risk during the Pandemic from those close to them inadvertently passing it to them. I accept the Claimant and Mr Orton have had to be incredibly careful about leaving the house and who they see and continue to be so. Attending their solicitors’ offices in Manchester in a short taxi journey to give evidence remotely under controlled conditions manages the risk. Expecting her to do so alone without her registered carer, as he travels on public transport to London just as the Government reintroduces mask wearing in response to Omicron, increases that risk dramatically.
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Thirdly, quite aside from that objective risk to the Claimant via Mr Orton if he travelled to London, to expect him to do so would for those reasons cause considerable stress and anxiety to the Claimant (who already suffers from anxiety about her health) and indeed to Mr Orton himself. There is an obvious risk both would be so distracted by that risk of inadvertent transmission on his return home that this would interfere with the quality of their evidence. In a case turning on credibility and reliability, this would not only disadvantage them, but also myself in assessing their evidence. Indeed, it may even disadvantage the Defendant itself, as I would have to make allowances for the likely effect of such ‘separation anxiety’ on their evidence. Allowing them to give evidence remotely from the same place in controlled conditions removed that issue.
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However, I imposed one condition on my ruling that Mr Orton (and the Claimant) could give evidence remotely: that the technology worked. This has been in my own experience during the Pandemic the real issue with remote hearings – and indeed was for Mr Feeny at the pre-trial hearing with a poor connection from his solicitors’ offices. However, we agreed that as we were starting trial with the Claimant’s evidence, we would take stock of the technology after her evidence had finished.
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The Claimant’s evidence over CVP in Court was manageable but there were issues with echo etc which required patience from Mr Feeny, for which I am grateful. However, it was improved with the assistance of a Court Associate and I am satisfied that we and the Claimant heard each other clearly enough throughout, even if it was not ideal. It in no way diminished the force of Mr Feeny’s detailed and skilled cross-examination. Although afterwards, he renewed his application for Mr Orton to attend physically, he did not object to Mr De Bono’s suggestion first to hear the evidence of the Obstetricians remotely over Teams that afternoon rather than over CVP in a Courtroom and to assess how that went before deciding whether Mr Orton had to come to London. After a brief initial hiccup, that worked much better and proceeded very smoothly. At the end of the day, Mr Feeny left the issue of Mr Orton’s attendance to me. As I was satisfied that Teams fully remotely had worked well, I decided we would use that for Mr Orton as my three reasons for remote evidence remained. Whilst Mr Orton started a little quietly, I am happy to say his evidence proceeded smoothly and again the cross-examination was undiminished, indeed very effective.