SC v University Hospital Southampton NHS Foundation Trust (Rev 2)

Whether a trial should be adjourned during the Covid-19 restrictions depends on the overriding objective and the practical requirements of a fair hearing. A remote hearing may be fair even where it is less satisfactory than a hearing in court. The court must assess the particular case, including the nature and length of the hearing, the complexity of the evidence, the parties’ ability to use the technology, and any unequal disadvantage. Where a hearing in court is lawful, safe and practicable, and a remote hearing would be undesirable, the trial should proceed in court. Delay is not justified merely because remote participation would involve genuine difficulties.

The claimant brought a clinical negligence claim concerning the alleged failure to diagnose a serious bacterial infection when she was a toddler, resulting in hemiplegic cerebral palsy. The trial had already been adjourned once and was listed to begin the following week. The defendant applied for a further adjournment, arguing that a remote trial would be unfair because of difficulties in assessing demeanour, communicating with witnesses and taking instructions during evidence.

The central issues were whether a remote hearing could be fair, whether it should nevertheless be avoided, and whether a hearing in court was lawful, safe and practicable during the Covid-19 restrictions.

1. The application was dismissed. The application was based on the premise that the trial had to be conducted remotely. There was no reason why a hearing in court could not take place. In any event, the trial could fairly proceed remotely if necessary.
2. The court was required to apply the overriding objective under Civil Procedure Rules 1998 CPR 1.1, 1.2(a) and 3.1(2)(b). The high value of the claim meant that the likely additional costs of an adjournment were not disproportionate. Although the application was made late, that did not justify dismissal. The previous adjournment, the age of the events, the uncertainty of any future listing and the parties’ continuing stress militated against further delay.
3. A remote hearing can be unfair, for example where a party cannot access or effectively use the necessary technology. In this case, all participants had access to the technology, were legally represented, and had not shown that the disadvantages of remote participation would affect the defendant unequally.
4. Re P (A child: Remote Hearing) [2020] EWFC 32 was materially different. Its observations concerned a lengthy family hearing involving allegations of fabricated or induced illness. In the clinical negligence claim, the risks identified in that decision could be reduced through case management, including appropriate breaks, arrangements for instructions and common access to the trial bundle.
5. A remote hearing would nevertheless be undesirable because of the length of the trial, the nature of the issues, the volume of written material and the complexity of the lay and expert evidence. The court therefore considered legality, safety and practicality. The applicable restrictions permitted attendance at court for legal proceedings, no safety objection had been established, and court staff confirmed that social distancing arrangements could accommodate the trial.
6. Directions were made for a hearing in court, with contingent directions for a remote hearing if an insurmountable obstacle emerged. The directions included measures to reduce the number of people present, provide breaks and facilitate communication between the parties and their legal teams.