Expert evidence and remote hearings

It will, hopefully, not surprise readers that supportive expert evidence is needed to succeed in clinical negligence claims. However, not all litigants are quite so savvy, as demonstrated by two high court decisions last year: Quaatey v Guy’s & St Thomas’ Hospital NHS Foundation Trust [2020] EWHC 1296 (QB) and Magee v Willmott [2020] EWHC 1378 (QB).

In Quaatey, the particulars of claim were described as repetitive, with no logical structure. The master was concerned they were drafted without expert evidence, which would be abusive as per Pantelli Associates Ltd v Corporate City Developments Number Two Ltd [2010] 3189 (TCC), and ordered the claimant to confirm she had supportive expert evidence.

The claimant served two reports from a consultant colorectal surgeon. However, these did not support her pleadings and the claim was struck out. The claimant appealed.

The judge held the expert had not identified any negligence from the two surgical procedures subject to the claim. An element of the claim related to informed consent and was not solely dependent on expert opinion. However, the claim was doomed to fail on limitation grounds.

In Magee, the defendant pointed out the claimant’s experts did not support many of the particulars of negligence and there was no causation evidence. A few days later, the claimant applied for permission to rely on three new reports. The claimant was granted relief from sanction. Yip J overturned this on appeal.

The breach was serious and had resulted in loss of the trial. The judge found the claimant’s solicitor had not been “entirely frank”. The solicitor had suggested the reports were served late due to an oversight – in fact, he had sought further evidence after the flaws were identified by the defendant.

As a result, the claim in relation to one consultation was struck out. The claimant had no admissible medical evidence and there was no claim on causation. However, the evidence was “just sufficient” to claim in relation to another consultation.

Reading between the lines, the judge may have had in mind the costs consequences of strike out for the claimant. Yip J stated: “I do not wish this to be taken as in any way encouraging a less than careful approach to allegations of professional negligence. It is of fundamental importance that such allegations are not made unless supported by an appropriate expert. All practitioners must take care to ensure that the pleadings properly reflect the expert opinion and do not contain unfounded allegations”.

In terms of practice points:

1.      Any attempt to stray beyond a report is abusive.

2.      Defendants should be keen to identify parts of pleadings for strike out.

3.      The claimant must plead a case on causation for all aspects of the claim.

4.      The need for a fact-finding exercise, for example in relation to consent, will have an effect on limitation considerations.

5.      Any failure to be frank with the court will be seriously harmful to prospects.

In 2021, it is only appropriate to consider the effect of remote hearings on expert evidence. As Johnson J observed in SC v University Hospital Southampton NHS Foundation Trust [2020] EWHC 1445 (QB): “[In March 2020], a remote hearing of a clinical negligence trial would have been almost unthinkable…” In May 2021, one cannot say the same.

The claim arose from an alleged four or five-day delay in the diagnosis of meningitis. The claimant, then 15 months old, developed hemiplegic cerebral palsy. There were four expert witnesses: two paediatric experts and two infectious disease/microbiology experts.

The defendant applied to adjourn a trial listed for the following week (in June 2020), citing the impossibility of an attended trial. The defendant expressed concerns about assessing witness demeanour and judicial reactions; the importance of face-to-face communication for clinicians who were subject to stringent criticism; difficulty taking instructions during a hearing; and its legal team’s unfamiliarity with virtual hearings.

Johnson J concluded that the hearing could go ahead remotely and a remote trial could be fair with appropriate safeguards. However, having regard to the likely length of hearing, the nature of the issues, the volume of written material and the complexity of the evidence, a remote hearing would be undesirable. Fortunately, it was possible to accommodate the parties in court, obviating the issue.

The courts are live to the fact many medical expert witnesses have faced increased clinical demands due to the pandemic. In approving an agreed request for an adjournment in Ludlow v Buckinghamshire Healthcare NHS Trust and another [2020] EWHC 1720 (QB), Jay J made express reference to "the fact that a trial at this point would test an already overly-stressed NHS”.

One option seemingly not considered in SC was that of a ‘hybrid’ trial, with some participants attending court in person and others by video. Such arrangements are sometimes proposed as a solution to capacity problems caused by the need for social distancing.

In the authors’ experience, many judges are more comfortable with remote hearings than they once were. Judges have ordered hybrid trials in which witnesses of fact give evidence remotely, but advocates and expert witnesses attend in person.

It is arguably preferable for expert witnesses to be examined in person, given their evidence may well be more complex and potentially more difficult to follow via video link. However, lawyers may prefer to have their lay clients at trial from a client care perspective.

Those opposed to remote hearings should consider what practical steps might be taken to facilitate in person trials or hybrid hearings. Can witnesses be timetabled to minimise the numbers in attendance at once? Is it possible for witnesses to listen to evidence remotely, only attending while giving evidence themselves? Can legal teams be ‘thinned out’, with some attending remotely?

Even if not determinative, a position agreed between the parties is likely to be a significant factor in any case management decision. More than ever, coming to court with proposed solutions rather than problems is likely to pay dividends.

Ultimately, whether to proceed with a remote or hybrid trial is a case management decision. Dissatisfied litigants must bear in mind the reluctance of appellate courts to interfere with such decisions.

Practically speaking, if a hearing is listed remotely, it is vital all participants are familiar with the technology. Even for experienced experts, giving evidence remotely may be a new experience posing its own challenges.

A short period of technological familiarisation ahead of trial is likely to help an expert give their best evidence and expose any potential technical issues in good time.

Richard Boyle and James Yapp are barristers at Temple Garden Chambers tgchambers.com