The judgment in SC v University Hospitals Southampton NHS Foundation Trust is of interest due to the current COVID-19 pandemic and the way it is affecting the court system, as it discusses the circumstances where a case is suitable for a remote hearing under the current guidelines. Johnson J heard the matter on 4 June 2020.
The application and subsequent decision arose from a medical negligence claim.
The claimant in the matter was a minor. In January 2006, when she was 15 months old, she was admitted to hospital with a high temperature. She was discharged and re-admitted. After four days, she was diagnosed as suffering from meningitis. She subsequently developed hemiplegic cerebral palsy. The claimant brought an action against the hospital, on that basis that had meningitis been diagnosed at the earlier hospital admission date, she would have been treated with intravenous antibiotics and would have made a full recovery.
Proceedings were issued in July 2017, and the trial of the matter was due to take place in January 2020. One of the claimant’s expert witnesses was ill at the time of the trial, which was therefore adjourned. The adjourned trial was listed to commence in the week beginning 8 June 2020.
On 28 May 2020, the defendant applied to adjourn that hearing. At the time of the application for a further adjournment, all parties were ready and willing to attend court the following week. The reason for the defendant’s application to adjourn was 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 in questioning in a way that occurs in a physical court room”.
It was also stated that the defendant’s leading counsel and witnesses did not have any experience of virtual trials. The claimant resisted the application on the basis that it had been made too late and that the case had already been adjourned once. It was likely that if the case was adjourned again, there would be a considerable delay in relisting the matter. The claimant also argued that a virtual trial would be fair, although they did concede that there would be practical difficulties.
Johnson J’s analysis
Johnson J considered the application and started with discussing the overriding objective, which is to deal with cases justly and at proportionate cost. He stated that:
“If it would be unfair to hear the case next week then, axiomatically, it would be unjust to do so.”
He also considered the claimant’s argument that the costs thrown away by any adjournment would be disproportionate. Johnson J disagreed with this, as the case was fully prepared for trial.
The judge agreed with the claimant’s argument that the application had been made too late. However, he commented that if it had been made earlier, it would likely have made the application more difficult to resolve.
The judge considered the position of both parties and said that if the adjournment was granted, the defendants would have the stress and uncertainty of the case hanging over them, and the claimant would face the continued stress and uncertainty of not knowing whether the claimant would receive compensation for the serious consequence of meningitis.
The judge stated at paragraph 16 of his judgment:
“In all the circumstances – subject to the question of whether the hearing can fairly take place next week – the overriding objective militates against the grant of an adjournment.”
The judge then went on to discuss whether a remote hearing would be fair. He stated that there were many cases where a remote hearing can, with careful case management, take place in a way that is fair to the parties. The judge commented that both parties were legally represented and that all witnesses had access to the technology required to conduct a remote hearing. He did concede, however, that the disadvantages of remote hearings would have an impact on all parties, but it would not do so in a way that was unfair to the defendant. The judge went on to say that the hearing could be conducted remotely in a way that was fair, but stressed that this did not mean that it should be conducted remotely:
“The solemnity formality and focus of the court room 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.”
He continued that this application was “not an isolated or irrational response to the single witness on the eve of a contested trial”. He stated that:
“… the Nuffield Family Justice Observatory… has at the request of the President of the Family Division, carried out extensive research into the use of remote hearings in the Family Court during the COVID-19 pandemic. It identified a number of concerns, including feelings on the part of many lay participants in hearings that they have not had a fair hearing.”
The judge therefore thought that, although the hearing could fairly take place, it should not do unless a court hearing was not possible.
He then went on to consider legality, safety and practicality, and commented that there was no legal prohibition on hearings taking place in court. The judge considered the Health Protection (Coronavirus, Restrictions) (England) Regulations (SI 2020/350), which explicitly permits attendance in court, and noted that it was not argued by either party that it would be unlawful for all participants to attend court.
The judge commented that “jury trials were taking place in the Crown Court and therefore if a jury trial could be conducted it was difficult to see a practical impediment to a non-jury civil trial.” He also stated that nobody had provided a convincing reason why a court hearing the following week was not practicable, and he explained that he had spoken to court staff and that they thought a “live trial” would be possible. The application was therefore dismissed, and the case was listed to be heard at court in the usual manner.
This is a very clear judgment. Johnson J provides coherent guidance as to the issues surrounding video remote trials and their effect on lay people and advocates.
He made it clear that a live trial could be catered for in court without a breach of pandemic regulations.
Notes for practitioners
This is an interesting case which shows sensible discussion of the risks that a practitioner may face when acting for the parties in any litigated case during these uncertain times. Parties will need to consider whether video conferencing is suitable for any case, or whether a live hearing would be more suitable, especially when there are several lay and expert witnesses.