CLINICAL NEGLIGENCE: An Introduction to Northern (Bar)


The last year has been one of mixed fortunes for claimants lawyers in clinical negligence litigation. 

The most obvious piece of bad news was the much anticipated decision of the Supreme Court in the appeals of Paul and Polmear. The result made claims for psychiatric injury by secondary victims in clinical negligence claims impossible or very restricted. 

The law relating to claims for psychiatric injury has long been subject to sustained and justified criticism. The approach has been restrictive. The underlying thinking could be said to represent clearly outdated ideas on damage to mental health; either that psychiatric injury does not represent an injury or at best represents a less deserving injury than a physical lesion. The judges who originally framed this area of law came from a background where essentially a practical approach was taken to problems with mental health, such as telling the individual to pull themself together or, in more extreme cases, having them shot for desertion. This arcane understanding was best reflected in insistence on something called “nervous shock”, allied with the concept of a person of reasonable fortitude. The inference from this approach was that robust people do not suffer from mental ill-health save in the most extreme circumstances. 

Against this background, the decision of the Supreme Court could be described as patched-up law. The majority considered that a person who did not suffer physical injury and was not threatened by such injury could only recover for psychiatric injury if the individual witnessed an accident involving a close relative or loved one. While the majority disavowed the historic approach based on nervous shock, the effect of their decision is in practical terms the same. In reality, there is no real rational stopping point between applying some essentially arbitrary rule or proceeding on the same basis as claims for physical injury – that is, reasonable foreseeability. While scarcely articulated in argument or in speeches, it is reasonable to accept that allowing claims for psychiatric injury on the basis of reasonable foreseeability would widen the scope for this to an unmanageable extent. Even persons of reasonable fortitude are known to suffer from psychiatric injury merely on becoming aware of the death of a relative or loved one, and even where the information is imparted in the most sensitive terms possible. 

The only remaining issue is whether a claimant can succeed through alleging that they witnessed an accident caused by clinical negligence. This was discussed in the Supreme Court but left open in the majority speech. Applying the usual definition of an accident – that is, something sudden and unintended – it appears unlikely that there could be claims except in very unusual circumstances. Accidental is not to be equated with traumatic. A badly bungled medical procedure such as involving delivery of a child or resuscitation could not be said to be accidental, however traumatic. It might be argued that if an individual was prescribed the wrong drug, thereby becoming confused and, for instance, walking in front of a bus, someone witnessing this might come within the Supreme Court’s residual approach. However, it is difficult to see why the outcome in this case should differ if the individual was, for example, found dead in their bed. 

Other Key Decisions 

The better news for claimants was in the Court of Appeal’s decision in Holmes v Poeton Holdings Limited. While this case involved disease suffered at work, the Court of Appeal held with relevance to clinical negligence claims that the approach to causation based on material contribution applied both to indivisible and divisible injuries. On this basis, it was not necessary for the claimant to show that he suffered his injury but for the defendant’s breach of duty. 

However, the claim failed on the facts. The question of whether material contribution to damage applies to indivisible injuries has been the subject of conflicting judicial decisions, with recent tendency swaying towards the view that it does not. This may have critical importance in resolving causation in finally balanced cases of indivisible injury. The Court of Appeal left untouched the important question of what is meant by “material” in this context. It was unnecessary to resolve this issue since the Court held that the claimant could not prove that his workplace exposure had been capable of causing his disease. 

This is an area which will no doubt be the subject of further argument, possibly in the remitted hearing in the case of CDE v Surrey & Sussex Healthcare NHS Trust. There the Court of Appeal considered that the trial judge had been wrong to reject the claim on causation in its entirety, but was able to identify on the evidence a period of one minute’s culpable delay in effecting delivery in a case of cerebral palsy. This decision, taken with Holmes, opens the door (or at least leaves it ajar) in relation to claimants seeking to prove causation through material contribution when the breach of duty has had a marginal effect on the outcome. 


For the next year, the most significant challenge will probably not be in the law but in relation to costs, following the introduction of fixed costs for clinical negligence cases settling below GBP25,000. Claimants’ lawyers objecting to this change have argued that it will result in the disappearance of small specialist firms in particular. An interesting parallel here is the position in asbestos litigation, after the Supreme Court held in Rothwell & Others in 2006 that pleural plaques were not an actionable injury. Prior to that time many low value claims had been brought at disproportionate cost. 

The removal of the actionability of pleural plaques did not decimate the market for asbestos litigation, but rather refined it. Cases of high value still persisted. These were increasingly handled by specialist lawyers, either in teams within large firms or in smaller bespoke providers. The insurers were able to use the capacity created by the lack of pleural plaques claims to deal with the higher-value claims more efficiently. This has resulted in a specialist market on both sides, which has substantially reduced the number of litigated claims. It will be interesting to see whether a similar change will take place in the clinical negligence market. However, the availability of specialist lawyers will continue and will likely dominate the market.

Chambers & Partners 2024

Law & Epidemiological Evidence: Double, Toil & Trouble- University of Western Australia Law Review, Vol 49 Issue 1

In late February 2019, I had lunch at Wadham College, Oxford, with Professors Carl Heneghan and Sandy Steel to discuss a seminar on epidemiological evidence and the law. Almost exactly three years later, the results of this seminar at Wadham in July 2019 and a subsequent seminar at DWF London in February 2020 have been encapsulated in an article written by Per Laleng and myself, published in the University of Western Australia Law Review. Given its protracted genesis, the title of “Double, toil and trouble” can have more than one interpretation, however the pandemic at least provides some mitigation in this regard.

We were pleased and honoured to be published in the Special Causation edition of the University of Western Australia Law Review. This is an open-access publication.

As you read through the 15 articles over 475 pages, you will notice the wide range of the authors, to include leading academics, very senior judges and even some practitioners. Incidentally, if you do not have the time to read all 15 articles when you have finished ours, I would recommend Richard Wright’s contribution, which offers remarkable clarity in a very difficult area.

Prior to being invited to submit this article to the editors in Western Australia, we had sent it to two leading academic journals in this country. Both of them considered that the article had too much of a practical focus to be suitable for publication. One of the editors considered that there was insufficient “technical law”. I am not quite sure what “technical law” means, but this does not stop me being instinctively opposed to it.

Traditionally, it was considered a positive feature of the common law that its awareness of the reality of experience made it accessible to a broad range of public opinion, and at least to a significant extent acceptable. The man on the Clapham omnibus was never conclusively identified, but we can be reasonably sure he was not a technical lawyer.

Technical law appears to have developed through the intellectual parochialism of academia in the United Kingdom. Admittedly this excessive and often unfocused complexity in the law does have the attraction of inducing a degree of intellectual terror amongst certain sections of the judiciary. However it represents a damaging movement away from the traditional strengths of the common law. Reading many judgments now, it is quite apparent that their content and methodology has no resonance at all with the vast majority of the population who do not immerse themselves in technical law. Further, judgments inevitably become more extensive reflecting the breadth of argument before the Courts. Such litigation is now often conducted at eye-watering cost, affordable by major corporations and until recently oligarchs , but with the result that resort to the courts is prohibitively expensive for vast sectors of the population .

It is striking that admiring remarks are often made in leading appellate judgments in the Court of Appeal and the Supreme Court about Australian decisions which often appear to be much more concise and focused. It could be reasonably observed that the Australian Courts have remained much closer to the true ethos of the common law. The Editors of the Western Australian Law Journal do not appear to draw any distinction between law in practice and technical law. It is also conspicuous that notwithstanding the considerable time and effort put into producing this Special Edition, it is open-access.

Notwithstanding the toil and trouble in dealing with epidemiological evidence Pro Vide law will continue with its programme of seminars and writing on legal issues. On 9th June we are holding a seminar looking at Montgomery after seven years with clinicians, academics and practitioners entitled “Montgomery. Still too much information?” We held a seminar in 2015 on this subject. Seven years down the line is an opportune time to review the implications of the Supreme court decision for clinical practice and legal liability. If you are interested in attending this event either in person at offices of Weightmans Liverpool or virtually you can let us know.

Charles Feeny

We’ve had a facelift!

So, we have rebranded! We thought it was time to freshen up our look to better reflect who we are now that we are six years down the line. 

With any business it is important to constantly evolve. Our aim is to continue to grow our team of Barristers and clerking team whilst still retaining the drive and high level of service we are renowned for.  

We have a new website dedicated to Barristers wishing to join us and have refreshed our original Solicitor focussed site so it contains more about the individuals you wish to instruct. 

We are now developing our family team with dedicated, experienced family diary/matrimonial finance and fee clerks. 

Having just had the busiest year since we started trading we are also open for applications from Barristers with a civil background looking to develop their practice. Our desire to continue to understand and anticipate a Barristers need for correct support is key to what we do. 

We hope you like our new look. Thank you to the Barristers currently using our clerking service for your loyalty. A collective thank you to our instructing solicitors for your support and instructions throughout the year. You have enabled us to keep doing what we love to do.

Take a look at the new website here and let us know what you think.


Breach of duty and corona virus: not so abstract after all

Since the start of the corona virus there has, understandably, been increased speculation about the knock-on effect to clinical negligence cases. A particular concern is whether the extra pressure placed upon NHS services and the allocation of resources will lead to a surge in claims.

The typical scenario would be a patient that attends hospital for a non-corona virus illness. There is a delay in him receiving the appropriate medical treatment which results in injury. From the Claimant’s perspective, he should have been seen, diagnosed and treated in a timely manner. The Defendant’s position is that resources were stretched and therefore it was not possible to assess him earlier.

Within this scenario the standard principles of tortious liability will continue to apply. The Claimant must demonstrate a breach of duty on the Bolamtest. It is worth revisiting what McNair J said in Bolamas regards breach of duty so as to understand its application within a specified situation:

where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill.

…in the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards.’

McNair’s J reference to ‘at the time’ is important. It is not just a reference to the state of medical knowledge but a reference to the temporal context. A duty of care does not exist in a vacuum and breach of the same is assessed according to context. The significance of context was recognised by Green J in Mulholland v Medway NHS Foundation Trust[2015] EWHC 268 (QB) [90]:

In forming a conclusion about the conduct of a practitioner working within triage within an A&E Department context cannot be ignored. The assessment of breach of duty is not an abstract exercise but one formed within a context – which here is that of a busy A&E where the task of the triaging nurse is to make a quick judgment call as to where next to send the patient.’

The recognition of context was again made clear by Turner J in Morrison v Liverpool Women’s NHS Trust 2020 EWHC 91 (QB) [94]:

Of course, in the clinical context a balance has to be struck between the needs of any given patient and any other competing professional demands placed upon the clinicians involved. Sometimes, the seriousness and urgency of a patient’s presentation and the absence of any conflicting factors will mandate a swift and decisive response. On other occasions, it is equally obvious that the needs of the patient must be deprioritised to allow the clinicians to attend other demands on their time of as a matter of priority. This is reflected in the defendant’s Emergency Caesarean Section Guideline which recognises that the degree of promptness with which an emergency caesarean ought to be carried out on any given patient must take into account circumstances in which other pregnancies might be thereby be exposed to undue risk.’

It is fair to say that in cases where there are time and resource pressures the wider context will be of crucial importance. However, these cases are distinct to those where the treatment received fell below the standard expected. Once a patient is seen by a clinician there is an expectation that the treatment will be in line with a reasonably competent medical practitioner. Perhaps the most controversial area will be cases where a hospital seeks to defend falling below an otherwise acceptable standard; for example, a failure to monitor a patient due to pressures from corona virus patients.

It is impossible at this stage to determine whether there will be an increase in the number of claims. It is fair to assume that cases alleging negligence brought about by limited resources due to corona virus pressures will be robustly defended. The duty of care owed in these situations is not abstract and is rooted within context.

Charles Austin

Charles Feeny, Gus Baker and Sam Irving published in the Journal of Patient Safety and Risk Management

“Charles Feeny, Gus Baker and Sam Irving have been published in the Journal of Patient Safety and Risk Management. In the April 2020 Volume 25, Issue 2, their article “Medical Accidents: a Socratic resolution?” has appeared.

The Journal of Patient Safety and Risk Management, formerly known as Clinical Risk, is an international publication. The Editor in Chief is Professor Albert Wu, of the John Hopkins University, USA. It is published online with access by subscription.  It publishes cutting edge articles in relation to patient safety and risk management.

The article by Charles, Gus and Sam discusses the response to medical accidents in the United Kingdom. They argue that the approach appears to be something which has developed in a piecemeal way.

The authors believe that the processes are now outmoded and lack a clear overview, in particular in terms of promoting better clinical management and less psychological impact on the victim.

There is specific discussion of the effect of clinical negligence litigation in terms of adverse outcomes in terms of patient safety and the psychological wellbeing of victims. The conclusion is that an overall approach has to be considered which will improve both patient safety and psychological outcomes for those injured by medical accidents.“

The article is subject to copy right but an abstract together with a link to sign up for the journal can be found here.

Statistics: just another brick in the wall

The complex question as to when and how statistical evidence should be used in clinical negligence cases was again considered by the Court of Appeal in Schembri v Marshall[2020] EWCA Civ 358. The decision provides a helpful summary of how such evidence is to be approached and its application to individual claimants. Whilst the conclusion of the court could be read as assisting claimants through the softening of traditional rules on causation such an interpretation would be misplaced. The position remains that each case must be considered individually and that statistics amount to nothing more than one piece of evidence before the court. 

The case of Schembriwas described by McCombe LJ as being ‘highly complex, and rather puzzling’. The Claimant was the husband of the deceased who suffered a cardiac arrest and died as a result of a pulmonary embolism. The deceased had attended upon her GP (the Defendant) on the 25thApril 2014 where she was examined and informed the most probable cause of her symptoms was muscular strain affecting her hiatus hernia. The deceased died the following day at home. 

It was admitted by that the deceased should have been referred to hospital immediately. Causation was disputed by the Defendant who argued that the deceased would have died anyway even had she been referred and attended hospital immediately. 

It was common ground between the Claimant and Defendant that had the deceased been referred she would have been diagnosed as having a pulmonary embolism. Potential treatment would have been a) anticoagulation (herapin) and/or b) thrombolysis (alteplase). It was also common ground that thrombolysis would not be undertaken automatically and would only be used where the potential benefits outweighed the risks. 

Mr Justice Stewart found at first instance that had the deceased attended hospital she would have received heparin by 9pm and that this would have taken effect to prevent further clotting by midnight. 

The parties disagreed about whether the use of anticoagulation and thrombolysis would have prevented the deceased’s death. It was the Claimant’s case that if anticoagulation by itself did not resolve the pulmonary embolism thrombolysis was available and therefore on the balance of probabilities the deceased would not have died. The Defendant argued that the blood clot which embolised was present on the 25thApril and would not have dispersed with anticoagulation. 

At first instance Stewart J posed the following questions [41]:

Therefore, the central questions for the court to determine now are:

  • i)  Has the Claimant proven on the balance of probabilities that there were progressive pulmonary emboli during the night of 25/26 April 2014? [An indicator for prescribing thrombolysis]
  • ii)  If so:
    • a)  would progressive pulmonary emboli have been picked up on monitoring had she been in hospital?
    • b)  if so, would thrombolysis have been prescribed and with what effect?
  • iii)  If, the answer to (i) and/or (ii) is negative, had the deceased been in hospital, would thrombolysis have saved her? In other words, had there not been progressive pulmonary emboli, can the Claimant prove that thrombolysis would have saved her had she gone into cardiogenic shock or arrested in hospital?
  • iv)  If the answer to (i)-(iii) are negative in that the Claimant cannot prove a specific train of events or mechanism which would absent the Defendant’s negligence, have saved her. Looking at the evidence as a whole, is it nevertheless more likely than not that the Claimant would have survived had she been referred to Southend Hospital?”

Question 1 was answered in the negative therefore question 2 did not arise. The key was the answer to question 3 and this is where the court had to consider a large amount of statistical evidence. Responding, broadly, to the statistical evidence the judge reached the following conclusion [104- 105]:

a number of points can be made about [the] statistics. Nevertheless, broadly speaking, had alteplase been prescribed, say, 3 hours earlier than 8.30 a.m., Mrs Marshall would probably have survived.

That said, I have already found that it cannot be shown, the balance of probabilities, that Mrs Marshall would have reached the threshold for prescription of alteplase at any stage prior to her going into cardiogenic shock.

Addressing the evidence on cardiogenic shock the judge concluded [115 – 116]:

Looking at the evidence on cardiogenic shock in isolation, I find that:

  • i)  The Claimant cannot prove on the balance of probabilities that the deceased would have been in the 64-75% who would have survived; she may or may not have been.
  • ii)  Nevertheless, her chances of survival would have been significantly increased had she been in hospital overnight and at the time she became haemodynamically unstable.

As to the position with cardiac arrest, the Claimant submits that, because of the fact that she was relatively young and had no comorbidity, she probably would have survived with high quality CPR in hospital, and therefore have been in the group of 35% (Sekhri) – 37% (Casazza) who do not die. In my judgment, whilst this is a possibility, it is less likely than her chances of surviving cardiogenic shock – itself not a probability.

Notwithstanding the statistical evidence Stewart J found for the Claimant. The judge concluded:

The court, in looking at the evidence as a whole, must take a common sense and pragmatic approach to that evidence, in circumstances where it is equivocal. The court must also be wary of relying on the statistical evidence in the literature which has a number of variables. Had the statistical evidence, in conjunction with the expert evidence, have led to the conclusion that Mrs Marshall’s chances of dying would have been assessed on presentation as only slightly better than 50-50, I would have found for the Defendant. However, the above evidence of Professor Empey and Doctor Gomez [the Claimant’s experts], in conjunction with the medical literature, drives me to the conclusion that on the clear balance of probabilities she would have survived.

On appeal, the Defendant argued that the judge fell into error by finding for the Claimant. The Defendant submitted that the judge was wrong to find for the Claimant as it was not proven that the deceased would have survived had she been admitted to hospital. The Court of Appeal dismissed the Defendant’s appeal and concluded the trial judge was entitled to reach the decision he did. Giving the lead judgment, McCombe LJ stated:

I do not consider that the judge was in error in posing the fourth question. The Appellant’s approach would require him to have stopped at the end of question (iii), assuming that he had answered those three questions in the negative. He was entitled, in my view, to assess what he described as the “close calls” in the light of the Deceased’s overall circumstances (age, medical history, haemodynamic stability etc.) and in the light of the medical learning in cases such as this. He was right to take the “common sense and pragmatic view” of “the evidence as a whole”, as he said at paragraph 146.

In reaching this decision McCombe LJ considered in detail the appropriate use of statistics and the guidance given by Lord Nicholls in Gregg v Scott[2005] 2 AC 176 [27 – 28]:

In cases of medical negligence assessment of a patient’s loss may be hampered, to greater or lesser extent, by one crucial fact being unknown and unknowable: how the particular patient would have responded to proper treatment at the right time. The patient’s previous or subsequent history may assist. No doubt other indications may be available. But at times, perhaps often, statistical evidence will be the main evidential aid.

Statistical evidence, however, is not strictly a guide to what would have happened in one particular case. Statistics record retrospectively what happened to other patients in more or less comparable situations. They reveal trends of outcome. They are general in nature. The different way other patients responded in a similar position says nothing about how the claimant would have responded. Statistics do not show whether the claimant patient would have conformed to the trend or been an exception from it. They are an imperfect means of assessing outcomes even of groups of patients undergoing treatment, let alone a means of providing an accurate assessment of the position of one individual patient.

The Court of Appeal was also mindful of the comments of Toulson LJ in Drake v Harbour[2008] EWCA Civ 25 that a court is entitled to find that the loss ensued was probably caused by the negligence if it is of such a kind that was likely to have resulted from the negligent act. 

In the absence of any positive evidence of breach of duty, merely to show that a claimant’s loss was consistent with breach of duty by the defendant would not prove breach of duty if it would also be consistent with a credible non-negligent explanation. But where a claimant proves both that a defendant was negligent and that loss ensued which was of a kind likely to have resulted from such negligence, this will ordinarily be enough to enable a court to infer that it was probably so caused, even if the claimant is unable to prove positively the precise mechanism. That is not a principle of law nor does it involve an alteration in the burden of proof; rather, it is a matter of applying common sense. The court must consider any alternative theories of causation advanced by the defendant before reaching its conclusion about where the probability lies. If it concludes that the only alternative suggestions put forward by the defendant are on balance improbable, that is likely to fortify the court’s conclusion that it is legitimate to infer that the loss was caused by the proven negligence.

Rather than providing a sweeping change, the Court of Appeal have quietly reaffirmed the use of statistics as a means of evidence. Nothing more and nothing less. It is an approach which is consistent with the court’s overall approach to the use of statistics and epidemiology which is succinctly summed by the editors of Clerk & Lindell on Torts (22nd Edition (2018), at para. 2-30

The assessment of causation would turn upon the detailed medical evidence, both as to the overall statistical chances of survival and the particular condition and circumstances of the patient.

The decision of Stewart J, as upheld by the Court of Appeal, is an example of a blend between statistical and clinical evidence. The ultimate decision took account of the statistics but recognised the oral clinical evidence which was that it was ‘very unusual’ for a patient to die in hospital of a pulmonary embolism. Following the decision in Drakethis was sufficient to satisfy causation. Statistics therefore are just one brick in the wall of evidence before the court. 

Charles Austin

Understanding limitation moratoriums/standstill agreements

Limitation should always be at the forefront of lawyers’ minds, but this is especially so given the difficulties being faced due to COVID-19. An understanding of the tools at your disposal should help to limit the difficulties faced and one key tool is a limitation moratorium or standstill agreement. 

The first point to consider is when a claim is brought for the purpose of the Limitation Act 1980. Practice Direction 17A paragraphs 5.1 and 5.2 answers this question in clear terms:

5.1 Proceedings are started when the court issues a claim form at the request of the claimant (see rule 7.2) but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is ‘brought’ for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date.

5.2 The date on which the claim form was received by the court will be recorded by a date stamp either on the claim form held on the court file or on the letter that accompanied the claim form when it was received by the court.

Given the current pressures on the court staff to arrange remote hearings it is not inconceivable that a claim form is not stamped the day it is actually received by the court. Claimant solicitors would be well advised to exercise caution and to keep records as to when a claim form was posted and therefore received. The burden of showing when the claim form was sent is on the Claimant (see Page v Hewetts Solicitors[2013] EWHC 2845 which concerns evidence of service).

It is not possible for the court to extend the limitation period in advance. In addition, outside the areas of personal injury and defamation there is no discretion to extend limitation. Accordingly, in cases where limitation is approaching but the Claimant is not ready to issue proceedings it will be necessary to consider entering into a moratorium or standstill agreement. 

Two possible types of agreement are available to parties: the first that the relevant period is suspended; the second that the relevant period is extended. Guidance on the difference between ‘suspended’ and ‘extended’ was provided by Coulson J in Russell v Stone[2017] 1555 (TCC). The court held that where the agreement is framed as a suspension then limitation will resume at the date upon which the agreement ends (in effect it freezes limitation). In contrast, where limitation is extended the period will end at the expiry of the extension. 

As a standstill agreement is a contract, which often runs to several pages, it is important to remember the principles of contractual interpretation – namely that an objective approach should be adopted and the document is to be interpreted as a whole (see Arnold v Brittan[2015] AC 1619). It is therefore important to consider whether the overall meaning is clear to the objective bystander. The use of clear language and precise dates is imperative.

What are the practical benefit of a standstill agreement? Asides from the obvious that it stops limitation running or extends limitation it will enable parties to comply with any relevant pre-action protocol. For example, the Industrial Disease pre-action protocol stipulates (at paragraph 11):

a claimant who commences proceedings without complying with all, or any part, of this protocol may apply to the court on notice for directions as to the timetable and form of procedure to be adopted, at the same time as he requests the court to issue proceedings. The court will consider whether to order a stay of the whole or part of the proceedings pending compliance with this protocol.

In addition, the Clinical Negligence pre-action protocol stipulates (at paragraph 1.6.1):

if proceedings are started to comply with the statutory time limit before the parties have followed the procedures in this Protocol, the parties should apply to the court for a stay of the proceedings while they so comply. 

Adherence to the protocol will likely save costs in the long run and ensure that any case is properly investigated before incurring the cost of issuing proceedings. 

A final point to note is that a properly drafted agreement will have the effect of estopping a defendant from raising limitation in a defence. For a claimant to assert that the defendant is estopped it will be necessary to show a clear, unequivocal and unambiguous promise (see Fortisbank SA v Trenwick InternationalLtd [2005] EWHC 399 (Comm)). 

Going forward, the following guidance points can be gleaned:

  1. Proceed with caution when sending the claim form to the court. Ensure that there is evidence of when it was sent and by what method.
  2. The burden of showing that the claim form was sent and received rests with the claimant. 
  3. A standstill agreement can either suspend the limitation clock or it can extend the limitation period. 
  4. Any agreement should be in writing with clear terms. Be precise. 
  5. The agreement is a contract and so it will be interpreted objectively. 
  6. A defendant will only be estopped from raising limitation as a defence if clear, unequivocal and unambiguous. 

Charles Austin

6thApril 2020

Litigation: when is it time to get up close and personal?

The recent surge in digital communication is obviously a reaction to the lockdown. The interesting question is whether this will be a temporary phenomenon, or rather what might be seen as an overdue sea change in the use of technology in the law.

The technology which can be used to conduct meetings and indeed court hearings through video link has been widely available since the 1990’s. However, bizarrely, at the commencement of the lockdown one chambers claimed that they had conducted what they believed to be the first joint settlement meeting by video link. In my experience, negotiation through a joint settlement meeting or mediation by way of video link has been ongoing for at least the last 20 years, albeit still a very small minority of the total number of such negotiations.

This lack of use, and indeed appreciation of the use of such technology is no doubt substantially explained by inertia and conservatism in the law. The advantages of digital communication are obvious, both in terms of commercial benefit and also perhaps more importantly at this time, environmental impact. One possible positive outcome of the Coronavirus crisis, following swiftly on bushfires and floods, is that it might make more people appreciate that we cannot continue to abuse the planet in the way we do.

If digital communication is to become the norm, is it realistic to anticipate that this will extend to all aspects of litigation, to include contested hearings and trials?

Last month, Mr Justice Mostyn conducted what was said to be the first full hearing in the Court of Protection by way of video link. The Judge and the lawyers involved all considered the hearing to have been an unqualified success. Interestingly, a different view was taken by Professor Celia Kitzinger of the Transparency Project website. As reported in Legal Futures, Professor Kitzinger had spent the hearing in the company of the principal witness, the daughter of the patient who was subject to the Court of Protection hearing. The patient’s daughter, Sarah, had flown in to the United Kingdom because she expecting a face-to-face hearing. She gave evidence in a small room with her solicitor and barrister observing the social distancing rules. She was clearly dissatisfied, indeed apparently upset, about the way the hearing was conducted. She was quoted as saying:

"In a courtroom people can see body language. They can feel the pain and emotion when you speak about that moment of utter desperation that you went through. But I was in a little 1-inch box on a screen and being honest, I bet half of them weren't even engaged in looking at it – as the Judge couldn't monitor them to make sure they were paying attention."

We have the options of communicating by telephone, video link or in person, in relation to many aspects of our lives . How do we decide which is the most appropriate?

First, it is reasonable to think that an important factor is how well we know the individual in person. With those we know very well, we are quite relaxed and confident in communicating by telephone. This is because we are familiar with the person and can sense from just the tone of their voice whether there is anything beyond the mere words being used, that is being communicated. We are less able to do this with people we have not met before. Here, we need much more of an impression of the person, to include the visual clues to which the witness Sarah made reference. The screen on a video link is still not good enough to give a full impression of the facial and body language of a person speaking. I have had many conferences with experts on the telephone. I think how well I know the expert is an important component to how effective this is. I still insist on having face-to-face conferences with experts at what might be described as crucial stages in litigation. This would, in particular, be the case when the action was running towards trial. I do not just want to hear what the expert has to say, but I want to form an assessment of how he or she would come over to a Judge in cross-examination. I would not be confident of doing this on the phone.

Secondly, the sensitivity of the information to be communicated is an important factor in deciding how to do it. There is an expectation that bad news, for example a poor diagnosis or prognosis from a doctor or the loss of employment, will be communicated in person. There was outrage when certain employers decided to tell their employees that they were being made redundant by text. This represents an expectation that sensitive information with an emotional impact should be communicated in person.

These factors probably underlie the different perceptions in relation to the Court of Protection hearing. For the Judge and the lawyers it was, in effect, just another day at the office. In saying this, I am not in any way suggesting that they were being insensitive to the situation, but those of us who are habituated to the courtroom are able to feel more relaxed and confident in that environment. For the witness Sarah, however, it was an important and emotional day of her life and she did not feel that this was significantly acknowledged in the process by video link.

Therefore, whilst the increased use of digital communication is undoubtedly to be welcomed and here to stay, there will remain, in my view, limits. Certainly in the short to medium term it is unlikely that trials by video link will be deemed satisfactory to most litigants. In the long term this may change, since eventually communication by video link will be more common than communication in person, and therefore represent the norm of human contact. That day is, however, I think, a long way off. We are all missing the daily personal contact with our friends and colleagues.

Coronial Law in the wake of Covid 19

The chief coroner has issued three sets of guidance:

  • No 34 guidance for coroners on Covid 19
  • No 35 hearings during the pandemic
  • No 36 Summary of the Coronavirus Act 2020, provisions relevant to Coroners

Perhaps the most crucial aspect of the guidance to organisations including Care Homes, Prisons, GPs, medical practitioners and NHS Trusts is:

  • a) Covid 19 is an acceptable direct or underlying cause of death for the purpose of the MCCD (Medical  Certificate of Cause of Death);
  • b) Covid 19 as a cause of death is not a reason on its own to refer a death to a Coroner under the CJA 2009, given that the same is a naturally occurring disease and is capable of being a natural cause of death.
  • c) Whilst a notifiable disease, this, however, does not mean that referral to a Coroner is required.
  • d) The Coronavirus Act expands the MCCD window from 14 to 28 days and allows a doctor who was not the attending doctor to sign the MCCD.

What reasons would require referral to a Coroner:

  • a) Medical professional unable to certify on the balance of probabilities that Covid 19 was the cause of death due to unclear cause of death or individual not seen within requisite timescales;
  • b) Concerns about delays in care or provision of care prior to death;
  • c) Failure to provide PPE or otherwise protect employees;
  • d) Deaths that automatically require an inquest to be held e.g. death in state detention;
  • e) Any other reason under the Notification of Death Regulations 2019.

It is anticipated that a) delays in the provision of care b) an inability to provide care c) incorrect diagnosis d) lack of PPE are likely to result in the largest number of referrals to Coroners, which in turn are likely to result in inquest (albeit delayed until Covid 19 is under control).

Examples that have already featured in the press, which may result in inquest are:

  • Misdiagnosis of Covid 19 by GP due to a-typical symptoms; 
  • Refusal to accept patients medically fit for discharge back into care home without Covid 19 testing (in the event that death arises from either Covid 19 or another cause for example hospital acquired pneumonia);
  • Protection of care home residents during a Covid 19 breakout; 
  • Other potential scenarios could include:
  • Failure to provide front line staff with appropriate or defective PPE;
  • Delay in providing treatment due to the need to adhere to safety guidance e.g. ensuring appropriate PPE in situ prior to commencing treatment;
  • Prioritisation of medical resources e.g. ambulance dispatch, assignment of ventilators;
  • Deployment of those who fall within ‘vulnerable’ categories to front line work e.g. recalling retired NHS workers to work in departments where there is a higher risk of contracting Covid 19;
  • Experimental Covid 19 treatment.

The Court will be alert to the national difficulties encountered and competing interests/advice. Nevertheless, cogent rationale and/or evidence in support of efforts made to reduce risk will be required. As such, if not already in place, Covid 19 risk assessments should be undertaken, Covid 19 policies put in place and, arguably most importantly contemporaneous and detailed records should be made in support of decisions or actions taken. Provided that the stance adopted is a reasonable one and can be supported evidentially, the risk of a finding of neglect should be minimal.