A clinical negligence trial was set to go ahead in person this week after a judge’s ruling that the defendant must have their day in court.
The Honourable Mr Justice Johnson dismissed the defendant’s application last week to adjourn the trial on the basis that it should be possible to hear proceedings in a physical courtroom.
In SC v University Hospital Southampton NHS Foundation Trust, the judge ruled that even though a hearing could fairly take place remotely, it was not appropriate in this case unless no other option was available.
‘The hearing could [judge’s emphasis] be conducted in a way that is fair,’ he said. ‘That does not mean that it should conducted remotely. There are many reasons why such a hearing, in this case, would be undesirable.’
The judge noted there had only been one remote clinical negligence trial since the coronavirus pandemic began. He ruled it would not be unlawful for any participants to attend court this week, nor was it argued that attending a hearing would risk the safety of any participants. He had spoken to court staff who were confident that a hearing could be accommodated with appropriate social distancing measures.
The court heard that proceedings related to alleged negligence in 2006 when it is claimed doctors failed to spot that a 15-month-old baby was suffering from a serious bacterial infection. She subsequently developed hemiplegic cerebral palsy.
Proceedings were issued in July 2017 and a trial date set for January this year was adjourned because an expert witness was ill. The trial will feature five witnesses of fact and four experts.
The judge said there was no certainty as to when the case could be heard if the trial was adjourned again, and in the meantime both parties would face extra stress from delaying proceedings.
While he made clear it would not necessarily be unfair to try a clinical negligence claim remotely, he said it lacked many of the features and benefits of a physical hearing.
The judge added: ‘In this case, a remote hearing would be possible. However, having regard to the likely length of hearing, the nature of the issues, the volume of written material and the complexity of the lay and expert evidence, a remote hearing would be undesirable.’
While the case will proceed in person, contingency plans were made in case this changed and the trial had to be staged remotely.