Lockdown trials - the new normal?
LE v Rhondda Cynon Taf County Borough Council 
Since lockdown began on 23 March 2020, many organisations have faced challenges in attempting to continue effectively in their day-to-day business. The wheels of justice keep turning and all involved in the legal process have had to adapt to deal with these challenges.
Although Trials were being adjourned in the early days following lockdown, the Courts have since embraced the technology that allows these Trials to proceed remotely. Unfortunately, and unlike Dolmans, not all Claimant organisations are ready to welcome these advances.
This was illustrated in the recent case of L E v Rhondda Cynon Taf County Borough Council, where Dolmans represented the Defendant Authority.
The Claimant had undergone heart bypass and aortic valve replacement surgery in 2014, following which she underwent a rehabilitation programme provided by the Defendant Authority. This involved some physical exercise in a gymnasium setting at one of the Defendant Authority’s leisure centres.
The Claimant had participated in the scheme for several weeks and had already completed the initial phases of the rehabilitation programme when her alleged accident occurred.
The Claimant alleged that during one particular session she was using a ‘stepper’, when she fell backwards and struck a nearby rowing machine. The Claimant alleged that the Defendant Authority was aware that she had problems with balance and a history of falls, but despite this she was instructed to hold onto a stack of chairs while using the ‘stepper’ when it was unsafe to do so.
The Claimant alleged that the Defendant Authority was in breach of the Occupiers’ Liability Act 1957, and/or, that it was negligent.
A robust Defence was filed and served on behalf of the Defendant Authority denying liability and strong lay witness evidence was obtained in support of the same.
The Claimant sustained significant injuries following her alleged accident, including a compression fracture to the first lumbar vertebra and a fracture to the left distal radius of the left wrist. In addition, the Claimant allegedly suffered psychological injuries.
Expert evidence was sought on behalf of both the Claimant and the Defendant Authority from Consultant Orthopaedic Surgeons, Consultant Psychiatrists, Consultant Cardiologists and Care Experts.
As such, the matter was originally listed for a three day Multi-Track Trial in the Cardiff County Court in June 2020 dealing with both liability and quantum. All experts, save for the Consultant Cardiologists, were scheduled to give oral evidence, as well as two lay witnesses for the Claimant and three for the Defendant Authority.
Possibility of a lockdown trial
The Court, of its own volition, listed the matter for a Directions Hearing by telephone in May 2020, utilising the ‘BT MeetMe’ platform. This was specifically listed to consider whether the three day Trial listed in June 2020 could proceed remotely “in light of the present public health emergency and the need to ensure social distancing”. It was envisaged at that stage that if the Trial was to proceed, then it would be done utilising either the ‘Skype for Business’ or ‘Microsoft Teams’ platforms.
The Court needed to consider, amongst other things, that the parties had “sufficient technical skill to operate the relevant hardware/software” and ordered both parties’ solicitors to file appropriate Witness Statements prior to the telephone hearing.
Having made enquiries with the Defendant Authority’s lay witnesses, various experts and Counsel, Dolmans was able to assure the Court that the Trial could proceed remotely, as far as the Defendant Authority was concerned.
Claimant’s attempt to adjourn the trial
The Claimant’s solicitors argued that the three day Trial should be adjourned to a later date, particularly as the Claimant had apparently just begun to show early signs of possible Alzheimer’s Disease and they considered that the matter was not suitable for a remote hearing.
Dolmans argued on behalf of the Defendant Authority that the matter should proceed on a liability only basis, thereby reducing the time estimate for the Trial to just one day and saving the costs associated with calling the various experts to give oral evidence.
While Dolmans and the Defendant Authority were sympathetic to the Claimant’s condition, it was argued that Alzheimer’s Disease is a progressive illness and that it would be in everyone’s best interests that liability, at least, was decided sooner rather than later.
HHJ Milwyn Jarman QC, who heard the telephone hearing, agreed and ordered that the trial window be reduced to one day to deal with liability only, to include breach of duty, factual causation and any contributory negligence.
Trial by ‘Skype for Business’
The liability only Trial was heard remotely utilising the ‘Skype for Business’ platform before HHJ Timothy Petts sitting in the Cardiff County Court.
The Claimant was the first to give evidence. Following cross-examination, it was apparent, however, that she was unable to confirm what exactly had caused her to fall and that she would have extreme difficulty proving factual causation based upon her own oral evidence. It was obvious to the Defendant Authority at this stage that the Claimant had failed to prove her case and a submission was made to the Judge that there was no case to answer.
The Judge agreed and dismissed the Claimant’s claim. There was, however, no question of any fundamental dishonesty on the Claimant’s part and, as QOCS applied, the Judge ordered the Claimant to pay the Defendant’s costs, albeit not to be enforced without the Court’s permission.
Some tips and practicalities
As this is such a new phenomenon, it is useful to consider some tips and practicalities arising from the remote Trial.
In total, eleven participants successfully attended the Trial remotely, including the Judge, his Clerk, Counsel for both parties, the Claimant, her husband who was a witness, the Defendant’s witnesses and representatives from Dolmans and the Defendant Authority. With so many participants, preparation was the key to the Trial proceeding successfully on the day.
The Court set up the ‘Skype for Business’ meeting and had e-mailed an invite/link to the parties’ solicitors prior to the Trial date. When accepted, this was placed into each solicitors’ calendar and they were able to forward the invite/link onto Counsel and their respective witnesses. It is worth checking with all participants beforehand that the invite/link is in their calendars as they need to join the Trial through this link.
Although the Court suggested that participants should join no later than five minutes before the start of the Trial, it was possible to join before this and wait in a ‘virtual lobby’. It is certainly worth doing so, as this gives some time to iron out any technical issues and ensure that everyone is connected. The Court requested that participants, other than the advocates and witnesses giving evidence at the time, turn off their microphones and cameras as the picture quality can be affected if too many cameras are switched on within ‘Skype for Business’.
It is essential that all participants are confident with their remote connections prior to Trial. There may be certain security/firewall issues that could interfere with connections between the Court and witnesses; using Local Authority computer equipment in particular.
As indicated, the Claimant and her husband were witnesses. There were a few occasions when the Claimant’s husband could be heard speaking and sometimes prompting the Claimant off camera. The Judge intervened and asked the husband to sit behind the Claimant, as would be the case in a Court Room. It would be advisable to suggest this at the outset of any hearing and/or request confirmation that the witness is alone in similar situations.
Finally, witnesses need to check beforehand that they are able to easily access Trial Bundles remotely, whilst not interfering with computer connections during the hearing. If not, consideration will need to be given to hard copies of Trial Bundles being provided and their subsequent destruction confidentially.
These are uncertain times and it is difficult to contemplate how such remote hearings will develop in the future and to what extent they will become the ‘new normal’. Whereas the intention appears to be that they will be a temporary feature, some legal commentators envisage that remote hearings will continue for certain procedures, even post-lockdown.
Dolmans already has experience of ‘hybrid’ Trials, with Counsel and some witnesses attending in person, with others attending remotely, and some Courts are already looking at other platforms such as the ‘Cloud Video Platform’.
In the above matter, Dolmans had also successfully arranged a conference with Counsel that was conducted remotely with the lay witnesses utilising the ‘Microsoft Teams’ platform.
The Claimant’s claim in the above matter was pleaded in excess of £200,000.00 and could potentially have been worth as much as £400,000.00.
By ensuring that the Trial was not adjourned and was listed for a liability only Trial remotely, the matter was dealt with expeditiously within a day and without the need to call any expert evidence. This resulted in substantial savings for the Defendant Authority, both in damages and costs.
Had the Claimant successfully argued against a remote hearing and the matter been re-listed for another three day liability/quantum Trial, the Defendant Authority would have faced further delays and substantial additional costs, irrespective of the outcome.
Clearly, there is a diversity of virtual platforms and it is envisaged that the Courts may adopt a specific platform in the future. Clients can be assured, however, that Dolmans, having embraced and invested in such technology for a considerable period of time, is ready for such challenges and well placed to conduct such hearings remotely, thereby continuing to protect clients’ interests in this ‘new’ age.