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Anna Wilkinson discusses SC (a child) v University Hospital Southampton NHS Foundation Trust 2020 and the current position regarding the listing of civil trials during the CV19 Pandemic

SC (a child) v University Hospital Southampton NHS Foundation Trust 2020 and the current position regarding the listing of civil trials during the CV19 Pandemic

Since trials in the civil courts all but came to a standstill on 23rd March when the country was placed into lockdown, with almost all being adjourned off and only certain case management and application hearings continuing remotely, we at Park Square Barristers have been working with HMCTS and the judiciary in order to ensure that as the pandemic continues we can deal with cases remotely where suitable and appropriate. There are different protocols which have emerged from different court centres and circuits but the general theme seems to be that all professionals involved in civil trials should be looking at their diaries well in advance (around 3 months ahead) to identify trials listed during that period, to liaise with others involved, and to communicate with the other side and with the Court regarding whether that trial may be able to proceed remotely. Many court centres are sending out orders which specify exactly what information is to be provided in advance of the trial and in what format, and “triaging” cases. Where there is disagreement between the parties regarding the suitability of a remote trial it may be listed for a hearing on that discreet issue.

In the case of SC (A Child suing by her mother and litigation friend AC) v University Hospital Southampton NHS Foundation Trust (2020) [2020] EWHC 1445 (QB), the Defendant hospital trust applied for a clinical negligence trial (listed to be heard on 8th June 2020 and having already been adjourned once in January 2020 due to the ill health of one witness) to be adjourned, the parties disagreeing about the appropriateness of the matter being heard remotely.

The Claimant, aged 15, had been admitted to hospital with a high temperature when she was aged 15 months. She was discharged before being readmitted and diagnosed with meningitis from which she subsequently developed hemiplegic cerebral palsy. It was not disputed that earlier diagnosis and treatment would have resulted in a full recovery. The trial to determine the issue of liability (whether the Defendant’s clinicians had been negligent in failing to establish that she was suffering from meningitis) was fully prepared for hearing when the Defendant made an application to adjourn on 28th May, contending that a remote hearing would be unfair.

The Claimant opposed the application, arguing that a remote virtual trial would be fair although it was accepted that there may be practical difficulties. It was also argued that the application was made late.

The Court found that the costs of proceedings, although a factor to be considered in the overriding objective were not determinative, and although the application had been made late, that enabled a more informed inquiry as to the possible manner in which the trial could be heard. If it were certain that any delay would only be a few weeks and there was no alternative manner to ensure a fair trial, then the overriding objective would compel a further adjournment. Only one clinical negligence trial had been conducted remotely, others had been adjourned – but that did not mean that it would be unfair to try a clinical negligence claim remotely. The disadvantages of a remote hearing would impact on both parties, but not in an unfair or unequal way. The Court stated that this was a case where a remote hearing was possible, but the likely length of the hearing, the nature of the issues and the complexity of the lay and expert evidence, such a hearing would be undesirable.

The court determined that even though a fair hearing could take place remotely, it should not do so in the instant case unless a court hearing was impossible. The Health Protection (Coronavirus Restrictions) (England) Regulations 2020 explicitly allowed attendance at court to participate in legal proceedings and it had not been argued during the application that there would be a risk to the safety of the participants. If some jury trials were being conducted it was difficult to see a practical impediment to a non-jury civil trial. The court found that there was no need for a remote hearing and therefore the reasoning behind the adjournment application fell away. The overriding objective meant that the trial should be heard even if it had to conducted remotely. The matter was listed to be heard in court, with contingent directions if it had to be conducted remotely.

It is clear that not every trial can be held remotely, and it will be less likely that trials which involve several witnesses, the use of interpreters and/or allegations of fundamental dishonesty proceed in such a manner, but it is also evident that we are far from “out of the woods” in terms of the pandemic and court users should do what they can to restrict the backlog of cases to what is strictly necessary. It is hoped that as we move forwards in court or hybrid trials, where for example the parties are at home and representatives and judges are in court, may be possible in cases in which the overriding objective mitigates against an adjournment but where it is possible to maintain social distancing and a fair trial for the parties.