For most clinicians, being asked to give evidence at trial will be an unfamiliar and potentially daunting experience. Their clinical care may be under scrutiny, they may face detailed questions about events that happened years earlier and attending court takes them away from already demanding clinical responsibilities.

This insight considers some recent clinical negligence judgments which provide useful reminders of what courts expect from factual witnesses, as well as highlighting why careful preparation and support can make a huge difference to the outcome of the case.

What do judges expect from clinical witnesses?

Judges recognise the challenges involved in giving evidence. Clinicians are not professional witnesses and, in many cases, attending court will be a completely new experience.

However, their evidence can be important to the outcome of a clinical negligence claim. The court will consider it carefully, including how it fits with the contemporaneous medical records and other evidence.

Three recent cases involving NHS Trust defendants illustrate some of the qualities that can help a factual witness give effective evidence:

• In OAJ [2025] EWHC 3345 (KB), decided on 18 December 2025, the judge contrasted the evidence of two clinicians. The midwife was described as a “straightforward and honest witness” who was doing her best to assist the court “without guile or defensiveness”. By contrast, the judge found another clinician – the obstetrician – “muddled, confused and ill-prepared” and “his grasp of the facts was weak and on occasions wrong.”
• In MJF [2024] EWHC 3156 (KB), the judge was critical of occasions when a clinician did not answer questions directly: “When asked whether he accepted that his clinical record was inaccurate on its face, the question had to be asked three times before a clear answer was given.”
• And in Runciman [2024] EWHC 1800 (KB), decided on 12 July 2024, the court took a positive view of a clinician who was doing his best to assist and gave “careful, balanced and thoughtful answers”.

Good factual evidence does not mean a clinician will have a perfect recollection of every event – instead, they should focus on being properly prepared, understanding the relevant records, listening carefully and answering questions honestly, clearly and directly.

The importance of contemporaneous records

Clinical claims can concern treatment provided a considerable time before trial, which means a clinician may therefore have little or no independent recollection of the patient or particular events.

That does not necessarily prevent them from providing useful evidence. Contemporaneous clinical records will often provide an important foundation for their evidence. Depending on the issues in the case, a clinician may also be able to explain their usual practice at the relevant time.

Proper preparation should help clinicians distinguish clearly between what they remember, what the records show and what they know about their usual practice. They should not feel under pressure to fill gaps in their recollection.

Supporting clinicians through the process

Regardless of seniority, giving evidence can be challenging. Experienced clinicians may be accustomed to making important professional decisions but less familiar with having those decisions tested through cross-examination. More junior colleagues may find the formality of court and questioning particularly unfamiliar.

This means that preparation matters. Before trial, factual witnesses should understand:

• the factual and legal issues relevant to their evidence
• the purpose of their witness statement and the importance of ensuring it is accurate and sufficiently detailed
• their role as a factual witness
• what will happen at trial
• how examination and cross-examination work
• how to address the judge and respond to questions
• the importance of listening carefully and giving clear, direct answers

The aim should not be to coach a witness on what to say, but rather to make sure they understand the process and can give their own evidence as clearly and confidently as possible.

The court understands the pressures

There is also an important human dimension to this issue. In a recent high-value brain injury claim, the claim was discontinued on day two of a five-day trial. At the conclusion of the case, the trial judge expressly thanked the doctors and clinicians who had attended court, recognising both their attendance and the difficult and stressful work they undertake.

That acknowledgement is worth remembering. Although the court will test witness evidence carefully, judges are also well aware that attending court can be a demanding experience for clinical staff.

How Capsticks can help

Capsticks’ industry-leading Claims team regularly supports NHS organisations and their staff through clinical negligence claims, from the early stages of gathering evidence through to trial. The team helps Trusts prepare for trial, supporting them to identify the factual and legal issues a clinician will need to understand, working with witnesses to make sure their statements accurately and fully capture their evidence, explaining the litigation and trial process in accessible terms, helping clinicians understand their role and what the court will expect from them and more. With appropriate preparation and support, clinicians can approach giving evidence with a much clearer understanding of the process and what is expected of them.

For further information about supporting factual witnesses or preparing for a clinical negligence trial, please contact Legal Director Cassius Box, Principal Associate Rebecca Aldous or Partner Philip Hatherall.

Develop the skills and confidence to act as an expert witness with our practical online medico-legal training course for experienced healthcare professionals. Learn more here.

Since 2005, there have been 63 inquiries launched across the UK, compared with 41 in the 20 years prior. Since 1997, there have never been fewer than five public inquiries running at any one time, and as of January 2026 there were 26 inquiries ongoing or announced – the most ever at one time (according to the Institute for Government).

Many of these inquiries and reviews relate to NHS care and patient safety. These statistics correlate with what we see in the news regularly, and recent examples include the Amos Review, Ockenden Maternity Review, Thirlwall Inquiry and the Lampard Inquiry.

Most recently, some of the reviews mentioned have culminated in Sir Jim Mackey’s 10-point maternity plan for NHS Trusts up and down the country. Among other recommendations, this includes the further roll-out of Martha’s Rule – a patient safety initiative already in place in other acute settings following the tragic death of Martha Mills in 2021 – and restating the commitment to post-death care following the David Fuller Phase 2 Inquiry in 2025.

Any incident, inquiry or review has overlapping consequences for patients, the public, health organisations and staff. The priority has to be rapid identification and containment of potential harm from an incident, as well as clear and candid investigation and learning. Each incident is fact-specific but establishing an incident response with the right resources to take action with clear lines of responsibility and accountability is crucial.

It also has to be acknowledged that there are legal consequences that follow. Whilst poor patient experience and harm can occur with or without a legal breach of duty, there are often groups of claims that follow inquiries and reviews. Being proactive and fair at the outset is fundamental to achieving a just outcome and attempting to limit distress for all those involved as well as unnecessary costs as far as possible.

If your organisation has any concerns or queries arising from inquiries, reviews or incidents, please contact Partner Charlotte Millar or another member of our experienced Complex Case Support team to find out more about how Capsticks can help.

Four important recent publications have considered the legal and governance framework within which AI in healthcare should operate when considering the issue of civil liability. The conclusion these publications come to is that the existing legal framework in the UK is sufficient for patient redress by way of a negligence claim against the healthcare provider. Where a patient is successful, it will then be for that health provider to seek an appropriate indemnity or contribution from the AI supplier based in contract.

In theory, this seems straightforward, but it again highlights the need for any health provider to be able to evidence the necessary good governance when developing, procuring or rolling out AI – whether that is to successfully defend a claim or seek an appropriate indemnity from a third party.

In AI in healthcare: bridging the liability gap, Partner Majid Hassan considers these four publications and gives an overview of the current position of the AI liability gap. Capsticks’ digital healthcare team can advise on all aspects of purchasing and integrating AI into your organisation or developing your own AI, including consideration of issues ranging from data management and sharing information to procurement, employment issues and litigation risk management.

Join us for our webinar on bridging the liability gaps and minimising risk to learn more.