Anthony Gold

Get in touch

020 7940 4060

  • People
  • Insights
  • What to Expect
  • Contact Us
Anthony Gold
  • Services
    • Housing And Property Disputes
      • Property Disputes
      • Leasehold Services
      • Services For Commercial Landlords, Tenants And Agents
      • Services For Residential Landlords And Agents
      • Housing And Tenancy Issues
      • Judicial Review
    • Injury And Medical Claims
      • Life Changing Injuries
      • Medical Claims
      • Personal Injury
      • Child Abuse
    • Family And Relationships
      • Starting Relationships
      • Ending Relationships
      • After Relationships End
      • Useful Contacts
      • Religious & Cultural Issues
      • Family Law FAQs
      • Family Dispute Resolution
      • Modern Families And Surrogacy Arrangements
    • Conveyancing, Property & Business Services
      • Business Agreements
      • Business Disagreements
      • Commercial Property
      • Commercial Property Disputes
      • Leasehold Services
      • Residential Property
    • Wills, Estates & Court Of Protection
      • Wills, Trusts And Estates
      • Claims Against Trusts And Estates
      • Capacity And Court Of Protection
    • Dispute Resolution & Employment Law
      • Personal Claims
      • Professional Negligence
      • Business Disagreements
      • Claims Against Trusts And Estates
      • Employment
    • People
    • Insights
    • What to Expect
    • Contact Us
  • Get in touch

    020 7940 4060

  • Housing and Property Disputes
  • Injury and Medical Claims
  • Family and Relationships
  • Conveyancing, Property & Business Services
  • Wills, Estates & Court of Protection
  • Dispute Resolution & Employment Law
  • Property disputes
  • Ownership disputes and shares in property
  • Challenging the decisions of councils and public bodies
  • Rights of way, boundaries, covenants and easements
  • Party wall disputes
  • Leasehold services
  • Lease extension
  • Collective enfranchisement
  • Service charge disputes
  • Repairs to leaseholds
  • Right to manage
  • Services for commercial landlords, tenants and agents
  • Breach of covenant
  • Forfeiture and recovery of possession
  • Dilapidations and failing to repair
  • Lease renewals
  • Services for residential landlords and agents
  • Regulatory issues
  • Repossession
  • Agents (including letting agreements)
  • Housing and tenancy issues
  • Repairs
  • Repossession and eviction
  • Rehousing and homelessness
  • Judicial review
  • Life changing injuries
  • Brain injury
  • Spinal cord injury
  • Amputation
  • Psychiatric injury
  • Fatal injuries and inquests
  • Medical claims
  • Surgical claims
  • Non-Surgical Claims
  • Birth injury
  • Child health and paediatrics
  • GP and primary care treatment
  • Private healthcare
  • Personal injury
  • Road traffic accidents
  • Accidents abroad
  • Accidents at work
  • Faulty products
  • Public liability and other accidents
  • Child abuse
  • Child abuse
  • Starting relationships
  • Pre nuptial agreements
  • Pre civil partnership and same sex relationship agreements
  • Cohabitation and living together agreements
  • Property ownership agreements
  • Ending relationships
  • Divorce and separation
  • Ending a civil partnership
  • Ending cohabitation
  • Agreeing child arrangements
  • Agreeing finance and assets
  • International arrangements
  • After relationships end
  • Abduction and leave to remove children
  • Changing and challenging parenting agreements
  • Changing and challenging financial agreements
  • Grandparents’ rights
  • Useful Contacts
  • Financial planners
  • Referral to Pension Actuaries and Pension on Divorce Experts (PODEs)
  • Tax Specialists
  • Financial Neutrals
  • Counselling
  • Conveyancing
  • Wills
  • Religious & cultural issues
  • Jewish family law
  • Islamic family law
  • Family Law FAQs
  • Children FAQs
  • Cohabitation Agreement FAQs
  • No-Fault Divorce and Separation FAQs
  • Financial Issues FAQs
  • Pre-Marital Contracts FAQs
  • Family Dispute Resolution
  • Roundtable Meetings
  • One Solicitor Solution
  • Mediation
  • Collaborative Practice
  • Arbitration
  • Second Opinions
  • Private FDR’s
  • Early Neutral Evaluation (‘ENE’)
  • Modern Families and Surrogacy Arrangements
  • Domestic Surrogacy
  • International Surrogacy
  • Business agreements
  • Business advice
  • Employment
  • Mergers and acquisitions
  • Supplier contracts
  • Business disagreements
  • Commercial property
  • Commercial Sale and Purchases
  • Commercial loans and mortgages
  • Property Investment: plot developers & plot buyers
  • Auction: sales and purchases
  • Commercial advice for landlords and tenants
  • Planning advice
  • Mortgage debentures and securities
  • Commercial property disputes
  • Breach of covenant
  • Dilapidations and failing to repair
  • Forfeiture and recovery of possession
  • Lease renewals
  • Leasehold services
  • Lease extension
  • Collective enfranchisement
  • Service charge disputes
  • Repairs to leaseholds
  • Right to manage
  • Residential property
  • Residential Sale and Purchases
  • Property Investment: plot developers & plot buyers
  • Remortgages
  • Auction: sales and purchases
  • Ownership matters and transfers
  • Wills, trusts and estates
  • Making a will
  • Applying for probate
  • Distributing the estate
  • Arranging lasting power of attorney
  • Trust advice
  • Tax planning and advice
  • Claims against trusts and estates
  • Contesting a will
  • Losses caused by trustees
  • Capacity and court of protection
  • Appointing a deputy
  • Removing a deputy
  • Arranging lasting power of attorney
  • Gifts and legacies
  • Managing assets under a deputyship
  • Care issues
  • Removing lasting and enduring power of attorney
  • Special educational needs
  • Capacity and court of protection
  • Personal claims
  • Debt recovery
  • Ownership disputes and shares in property
  • Civil and commercial mediation
  • Building disputes
  • Professional negligence
  • Professional Negligence
  • Property Fraud
  • Investment Fraud
  • Business disagreements
  • Building disputes
  • Civil and commercial mediation
  • Claims against directors
  • Contract disputes
  • Debt recovery
  • Directors personal liabilities
  • Employment
  • Professional negligence
  • Claims against trusts and estates
  • Contesting a will
  • Losses caused by trustees
  • Employment
  • Employment
  • Unfair or Wrongful Dismissal
  • Settlement Agreements
Anthony Gold > Blog > Protecting vulnerable parties and witnesses in civil proceedings

Sana Bibi

sana.bibi@anthonygold.co.uk

Share
  • February 23, 2021
  • Blog
  • By  Sana Bibi 
  • 0 comments

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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.

  1. 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.
  1. 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.
  1. 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.*

Sana Bibi

sana.bibi@anthonygold.co.uk

Get in touch

Call, email or use a contact form – whichever suits you. We’ll let you know the best person to help you get started.

Call or Email

020 7940 4060

mail@anthonygold.co.uk

No comments

Add your comment

We need your name and email address to make sure you’re a real person. We won’t share your email address with anyone else or send you spam. Please complete fields marked with *.

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

*

code

Related Services

  • Accidents abroad

  • Accidents at work

  • Public liability and other accidents

  • Road traffic accidents

  • Amputation

  • Birth injury

  • Brain injury

  • Care issues

  • Child health and paediatrics

  • Faulty products

  • Fatal injuries and inquests

  • GP and primary care treatment

  • Non-Surgical Claims

  • Private healthcare

  • Psychiatric injury

  • Spinal cord injury

  • Surgical claims

About the author

  • Sana Bibi

Meet the team

  • Injury and Medical Claims

You might also like...

  • Settlement of construction site claim

  • £3.2 million settlement for leg amputation

  • The new discount rate for personal injury claims

Contact Us

Request a Call Back

About Us

  • Accessibility
  • Compliance
  • Responsible Business
  • Equality & Diversity
  • History
  • Our Beliefs
  • List of LLP members

Careers

  • Trainee Solicitors
  • Vacancies

Social Media

  • Follow us on Twitter
  • Follow us on LinkedIn
  • Follow us on Instagram
  • View our YouTube channel

Online Payments

  • Payment page through Worldpay

Accredited by

Lexel Parctice
76000Award

Copyright © Anthony Gold Solicitors LLP. All rights reserved. Anthony Gold Solicitors LLP is a limited liability partnership registered in England and Wales with registered number OC433560 and is authorised and regulated by the by the Solicitors Regulation Authority with registration Number 810601