Vulnerable witnesses

Giving evidence is an incredibly daunting experience, but this is exacerbated significantly in the case of a vulnerable witness, and this can in turn have a major impact on the quality of the evidence that they provide to the Court. This obvious disadvantage has been recognised and now addressed by way of an update to the Civil Procedure Rules (CPR).

On the 6 April 2021, an update to the CPR and an amendment to the “overriding objective” within it were introduced to help vulnerable litigants and witnesses to better cope with the process and with giving evidence in a claim. This change acknowledges the fact that if a witness or any other party to a claim is vulnerable in any way, this can adversely affect their ability to be a part of the proceedings effectively, which in turn can render their evidence far less reliable. The intention of this amendment to the CPR is to try and negate this disadvantage.

Practice Direction 1A of the CPR now states at section 1 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”. As was the intention with the introduction of the overriding objective, the Courts want to ensure a level playing field and have recognised that, with witness evidence being so crucial in so many cases, it is vital that the witness giving that evidence feels as comfortable and confident to do so as possible. With a witness facing often fierce cross-examination and most witnesses having never been a part of any contentious litigation before, if that witness is vulnerable, their evidence can be significantly impaired, and this update seeks to rectify this imbalance.

Section 2 goes on to say that “Vulnerability of a party or witness may impede participation and also diminish the quality of evidence” this again being the purpose of this update. This therefore begs the question when a person should be considered vulnerable and according to section 3 of the Practice Direction, “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.”

Examples could include physical impairments, such as a broken limb and it might be that the person has difficulty in leaving their home in order to attend court to give evidence. Perhaps of more relevance to the times we are currently living in, Covid might also make someone vulnerable for a limited time and we must also consider vulnerability in certain places – one obvious example might be a person’s level of anxiety around the court room itself.

We will all have dealt with many cases in which either our client or a key witness falls into one of these definitions of vulnerability. I have, for example, recently taken a witness statement from a close friend of a client in support of a substantial claim for care and assistance, where the witness did not speak English. I therefore had to arrange for an interpreter to be present when taking the statement and to then read through the statement with the witness so that any amendments could be made. Finally, the interpreter then had to translate the entire statement for the witness to ensure that he fully understood the contents and believed them to be true in their entirety to the best of his knowledge, before both the witness and the interpreter signed a statement of truth.

These are all steps which should be taken as a matter of course in a situation such as this, but with the introduction of this new update to this Practice Direction, the Court will now be specifically looking at whether we, as solicitors, have done all that we possibly can to ensure that our clients and their witnesses fully understand and are comfortable with the litigation process and their roles in it.

In fact, section 5 of Practice Direction 1A now states that:

“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.

Sub-section (a) is very important.

Why is this? Because if the vulnerable party is our client, then it is crucial that they understand everything that is happening as part of the ongoing proceedings and what the Court expects of them. It is our role as solicitors to facilitate this, but with a vulnerable client, the task of doing so becomes more difficult and therefore even more important.

If the vulnerable party is a witness, then it is particularly important that it is explained to them that they are providing their evidence to the Court and that their statement must be accompanied by a statement of truth, with the implications of signing a statement of truth being explained very clearly to them. The witness needs to know that their evidence will be considered by the Judge when making a finding on a certain aspect of the case and this is where a vulnerable witness might experience some anxiety about their role in the proceedings.

Only time will tell how the new rules will be implemented in practice, but it is a welcome change to make clients and witnesses feel much more comfortable about giving evidence and crucially, practitioners must now from an early stage carry out an assessment of their clients’ and witnesses’ vulnerability and keep that under review. Consideration should be given to any potential issues that might impair a person’s ability to participate in proceedings or give their best evidence.

Some will be easier to identify, but others will not be so straightforward, as not all vulnerability is obvious at the outset. Of greatest importance will be how to present the client’s or witness’s 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”.

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.*