Protecting vulnerable parties and witnesses in civil proceedings

The new practice direction to supplement Part 1 of the Civil Procedure Rules (CPR) 1998, Practice Direction 1A – Participation of Vulnerable Parties or Witnesses in proceedings, effective from 6 April 2021 raises some very interesting points to be considered by practitioners including those involved with personal injury claims.  The family courts already have procedures in place when dealing with vulnerable parties and witnesses and it was about time that the rest of civil court system also caught up.

Whilst it is clear that a child client or a client lacking capacity through brain injury or pre-existing medical condition is to be treated as a protected party in accordance with CPR Part 21, often those who due to severe psychological trauma following a life changing accident or event or with learning difficulties, struggle to provide instructions as it is, are not offered much support procedurally despite best efforts on the part of their legal team. Putting a witness statement in their own words for instance, when they are already nervous or anxious can make an already stressful process even more stressful.  Of course, most cases do settle out of court, but clients and some witnesses alike are terrified at the very thought of going to court and being cross examined to a point where some clients will settle for less than the true value of their claim and witnesses will choose not to co-operate fully or if at all. Some who do go to court do not do very well due to their vulnerability.

The new practice direction helpfully sets out the factors to be considered when determining the vulnerability of a party or a witness, which interestingly includes but is not limited to “social, domestic or cultural circumstances”. This is to enable the courts to give suitable directions so that the court proceedings can be conducted in accordance with the overriding objective contained in CPR Part 1 .

Practice Direction 1A sets out the following:-

1. The overriding objective requires that, in order to deal with a case justly, the court should ensure, so far as practicable, that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence. The parties are required to help the court to further the overriding objective at all stages of civil proceedings.

2. Vulnerability of a party or witness may impede participation and also diminish the quality of evidence. The court should take all proportionate measures to address these issues in every case.

3. A person should be considered as vulnerable when a factor – which could be personal or situational, permanent or temporary – may adversely affect their participation in proceedings or the giving of evidence.

4. Factors which may cause vulnerability in a party or witness include (but are not
   limited to)—
   
   i. Age, immaturity or lack of understanding;
   ii. Communication or language difficulties (including literacy);
   iii. Physical disability or impairment, or health condition;
   iv. Mental health condition or significant impairment of any aspect of their intelligence or social functioning (including learning difficulties);
   v. The impact on them of the subject matter of, or facts relevant to, the case (an example being having witnessed a traumatic event relating to the case);
   vi. Their relationship with a party or witness (examples being sexual assault, domestic abuse or intimidation (actual or perceived));
   vii. Social, domestic or cultural circumstances.

5. When considering whether a factor may adversely affect the ability of a party or witness to participate in proceedings and/or give evidence, the court should consider their ability to—
   

(a) understand the proceedings and their role in them;
(b) express themselves throughout the proceedings;
(c) put their evidence before the court;
(d) respond to or comply with any request of the court, or do so in a timely manner;
(e) instruct their representative/s (if any) before, during and after the hearing; and
(f) attend any hearing.

6. The Court, with the assistance of the parties, should try to identify vulnerability of parties or witnesses at the earliest possible stage of proceedings and to consider whether a party’s participation in the proceedings, or the quality of evidence given by a party or witness, is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make directions as a result.

7. If the court decides that a party’s or witness’s ability to participate fully and/or give best evidence is likely to be diminished by reason of vulnerability, the court may identify the nature of the vulnerability in an order and may order appropriate provisions to be made to further the overriding objective.

8. Subject to the nature of any vulnerability having been identified and appropriate provisions having been made, the court should consider ordering “ground rules” before a vulnerable witness is to give evidence, to determine what directions are necessary in relation to the nature and extent of that evidence, the conduct of the advocates and/or the parties in respect of the evidence of that person, and/or any necessary support to be put in place for that person.

 Only time will tell how the new rules will be implemented in practice, but crucially, practitioners must now from an early stage carry out an assessment of their clients and witnesses’ vulnerability and keep that under review. Some will be easier to identify, others will not be so straightforward as not all vulnerability is obvious at the outset. Of most importance will be how to present the client’s or witness’ evidence, ensuring that full weight is given in cases where they or their witness may not be required to stand in the witness box whilst ensuring parties are on an “equal footing” and cases are dealt with “justly”. It may be necessary to obtain expert evidence in appropriate cases having regard to the criteria  set out in Practice Direction 1A to present to court at the directions stage or earlier. This may also need to be kept under review with further evidence to be obtained prior to trial.  One can instantly appreciate the insurance industry jumping up and down and resisting any application made on behalf of a vulnerable claimant or witness on the basis any such application would not further the overriding objective and would be unfair on the defendant. But the reality of the situation is that the insurance industry will seek to take advantage of the new rules wherever possible.

This is a much needed change to protect the best interests of those who are vulnerable.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*