Manon Rowlands details the procedural changes introduced last year, in respect of vulnerable witnesses, which support the identification of and full and fair participation of vulnerable individuals involved in proceedings.
The Civil Procedure (Amendment) Rules 2021, in force since 6 April 2021, added a brand-new Practice Direction and amended the CPR’s Overriding Objective, to make specific provision for vulnerable witnesses in civil proceedings. On its publication, the Courts and Tribunals Judiciary website detailed that: “The amendment makes it clear that dealing with a case justly includes ensuring that the parties can participate fully, and that parties and witnesses can give their best evidence.”
The amendment followed the recommendation in the Civil Justice Council Report on Vulnerable Witnesses, published in February 2020. It sought to bring civil proceedings closer in line to the criminal courts in terms of furtherance of the Equality Act 2010. However, at 18 months post-implementation, practitioners and courts have been slow to utilise the new provision.
Civil Procedure Rules
CPR 1.1 was amended to include (italicised)
“(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence” […]
CPR 1.6 was also added: “Practice Direction 1A makes provision for how the court is to give effect to the overriding objective in relation to vulnerable parties or witnesses”
Practice Direction 1A states that in civil proceedings, witness vulnerability may impede participation and diminish the quality of evidence given. PD1A notes that relevant factors could be personal, situational, permanent, or temporary, providing a wide ambit for potential inclusion. Non-exhaustive vulnerability factors include age, immaturity, lack of understanding, communication, or language difficulties (including literacy), physical/mental disability, impairment, or health conditions; as well as social, domestic, or cultural circumstances. Explicit reference is made to those who may be vulnerable due to the impact of the subject matter of the proceedings upon them – the specific example given is those who have witnessed a traumatic event. This category is of clear relevance to claims involving psychiatric injuries and, in particular, secondary victims.
Starting point: resources
Representatives are advised to raise vulnerability at the earliest opportunity, and if possible, to identify the nature of the vulnerability at Pleadings stage to put at forefront of court’s mind. Representatives must consider whether Pleadings are properly constituted with a Statement of Truth – it may be that a party needs an “authorised person” to certify a document on their behalf. Once a vulnerability is identified, the court will need to consider appropriate measures to impose. There are no standard directions, and this will inevitably be determined on case-by-case basis.
Practitioners will be assisted by the Equal Treatment Bench Book (updated version February 2021) and Inns of Court College of Advocacy training such as the Advocate Gateway Toolkits (https://www.theadvocatesgateway.org/toolkits-1-1-1). These resources provide a useful overview of many conditions and disabilities practitioners are likely to encounter and provide guidance on the difficulties often faced by vulnerable witnesses.
Para 6 of PD1A reads: “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.” Failure to address vulnerability until the date of trial may well lead to adjournment and a wasted costs order.
PD 1A para 8 provides that subject to vulnerability being identified, the court should consider any adjustments which may improve the ability of a witness to fully participate in proceedings. Every adjustment should be made to secure in-person attendance where possible. It may be that the Court orders “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 any necessary support.
However, it may be that attendance in person is simply not possible. Factors which may make court attendance difficult might range from sensory overload (noise and light) or sensitivity to strangers or other features of the court environment. Many practitioners may however be experiencing a reluctance on the part of the courts to list trials remotely in the new, post-covid world. Identifying vulnerability factors at an early stage in proceedings is therefore crucial to ascertaining whether adjustments can be made or, in exceptional cases, whether the trial should proceed remotely.
In the criminal courts, advocates who participate in cases involving young people and other vulnerable witnesses undergo compulsory training. The Inns of Court initially created the “20 Principles of Advocacy” to deal with vulnerable witnesses. Examples of how to challenge evidence whilst respecting the vulnerability of a witness might be:
Unlike in criminal courts, there is no statutory right to intermediaries in the civil courts, although it may be that in certain circumstances an intermediary would amount to a reasonable adjustment for some witnesses. An intermediary can assist the court in assessing a person’s communication needs (usually at a “ground rules” hearing); and they can provide active support to a party or witness to help them understand what is happening and assist them to communicate, including while giving their evidence. In some circumstances, an intermediary may need to be a close family member or carer where it is shown that a vulnerable witnesses communication needs so require specialist input.
The raising of the issue of witness vulnerability will be complicated where the vulnerability is the subject matter of an allegation of fundamental dishonesty within the meaning of section 57 of the Criminal Justice and Courts Act 2015. ICCA note that “it is recognised that our adversarial system must permit challenge of crucial evidence. It should not encroach on the rights of a defendant to challenge the evidence against him or her in a fair and appropriate way. The skill is in allowing this to be done without exploiting or taking unfair advantage of a child or a person with a vulnerability.”
Take, for example, cases involving allegations of chronic factitious condition or Munchhausen. It is entirely understandable that from a Defendant perspective, principles of fairness require direct and vigorous challenge of causation and quantum of injury. Equally, under the new PD1A guidance, account must be taken of a victim’s status as a vulnerable status, particularly when it comes to cross-examination. With allegations of fundamental dishonesty on the rise; PD1A should be at the forefront of the mind of Claimant practitioners.
Vulnerability, once identified, will need to be considered at the costs management stage. CPR 44.3(5) now reads:
(5) Costs incurred are proportionate if they bear a reasonable relationship to—
(f) any additional work undertaken, or expense incurred due to the vulnerability of a party or any witness.
This provision is most likely to be relevant to the trial process itself, for example, in the use of an intermediary or longer trial window due to need for breaks. On the other hand, practitioners who fail to identify vulnerability of a witness in sufficient time, causing trials to be subsequently derailed, may find themselves at the receiving end of wasted costs orders.
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