The recent high profile case involving the Post Office and the former workers known as Bates & Others v The Post Office Limited is a reminder of the need to have an evidential basis for cases which back up assertions and allegations made.
This was a case about problems with the computer system ran by the Post Office which presented numerous difficulties and traumas to the staff employed. Evidence in relation to some issues was not presented at trial and the barrister dealing with those matters attempted (incorrectly) to use the closing statement (closing submissions) to correct the errors made. Actually it appeared that there was little factual evidence to support the arguments put forward and the judge made clear that allegations and assertions made in a case must be supported by evidence which needs to be available for review at trial.
The circumstances of that case are complex but the issues raised seek simply to remind practitioners that it is the claimant’s obligation to prove the case and it is the claimant’s obligation to provide evidence which supports the allegations and assertions made.
In clinical negligence much of the evidence in relation to the starting issues in the case, that is whether there has been a failing in care and what harm, if any, has arisen from that, come from the medical records made before, during and after the events in question. Those medical records are highly pertinent. Other aspects of the claim can be supported by independent expert evidence dealing with (for example) the cost of care into the future or equipment needs.
However these are not the only forms of evidence which can and should be considered and medical records or indeed expert evidence themselves cannot fully establish all aspects of a claim.
For example, most cases will involve a schedule of loss dealing the losses and costs that have been incurred or are likely to be incurred in the future. There are however many cases in which expert evidence is not required or would be a disproportionate cost and therefore those losses need to be justified. There is little point putting forward a claim for loss of earnings if there is no evidence to support it. Likewise it may well be that family members have provided a great deal of support but without witness evidence to that effect, it is difficult to justify.
It is always important that parties recognise (particularly claimants who have a burden to establish aspects of the case), that there is a requirement to provide evidence in support. It is not simply the case that claimants can assert the difficulties that they had (which in many cases are absolutely true). They need to be able to support that with other evidence. Sometimes that can only be in the form of a witness statement but in other cases it can be by way of bank statements. receipts, witness evidence from additional individuals, letters from employers and so on.
The need to back up issues has been reflected in a number of cases more recently, but in the case of RXK v Hampshire Hospitals NHS Foundation Trust Master Cook, dealing with the issue of an interim order for costs found himself somewhat disappointed by the evidence put forward in support of an application for funds for costs. He provided a non-exhaustive list of information and evidence that were required. It was significantly more than the information with which he had been provided.
These cases have one theme in common; that evidence is required to support an application and a claim. Each element of a claim should be supported; each area of compensation should be supported; each allegation of negligence should have evidence . It is important that practitioners ensure that this is obtained. It is also important however that claimants in particular are advised of the need for their assistance with this and to provide in a timely manner.
Clinical negligence cases are not won on statements, expert opinion and medical records alone. Legal claims do not work in isolation from clients. They have often an equally important task in locating and identifying evidence in support of their claims . The Post Office case (and cases as there have been a few on these issues) remind us that all members of the legal team and the client and their support group need to be involved and active in obtaining evidence which needs to be available long before the trial date is even considered. This is a team effort on occasions and clients need to be involved in the process or suffer the consequences.