It has now been four years since the introduction of the Civil Procedure Rules Practice Direction 1A relating to vulnerable parties or witnesses. There has been limited guidance from the courts regarding its practical interpretation for use in civil claims. However, the High Court has recently provided some guidance on the use of intermediaries to assist vulnerable witnesses to give evidence in personal injury proceedings
Lauranne Nolan, Associate Solicitor in the Keoghs Specialist Abuse team, considers the comments and guidance in CXC (a protected party by her litigation friend BXB) v (1) David Clarke, (2) EUI Limited [2024] EWHC 3138 (KB) and the further development in the application of the Practice Direction 1A.
The claimant was involved in a road traffic accident on 16 September 2007. She sought damages in respect of personal injury she suffered as a result of being a passenger in the car driven by the first defendant.
Negligence was admitted and the claim was resolved in May 2009, prior to formal court proceedings being issued. The claimant received damages in the sum of £25,000 in relation to her injuries, which included a severe brain injury and a fracture to her jaw. Subsequently, the claimant sought an order to set aside this settlement on the basis that she lacked capacity to conduct litigation from 2007. The issue of capacity was contested by the defendants and further life events had occurred during the period of time since the initial accident in 2007 which may have also impacted on the claimant’s capacity, including her involvement in a further road traffic accident in 2016.
The claimant’s solicitors made an application for permission to obtain a report from a registered intermediary to advise on how the claimant would best be able to engage in the proceedings, and for an order that HMCTS pay the costs of obtaining such a report, which is usual practice for intermediary use.
CPR Practice Direction 1A provides that, in order for the court to deal with a case justly, the court should ensure that the parties are on an equal footing and are able to participate fully in proceedings. The vulnerability of a party or witness may impede their ability to participate and diminish the quality of their evidence as a result. The court should therefore take all proportionate measures to address these issues in every case.
The practice direction sets out a number of factors which may cause vulnerability including, but not limited to:
a) age, immaturity or lack of understanding;
b) communication or language difficulties (including literacy);
c) physical disability or impairment, or health condition;
d) mental health condition or significant impairment of any aspect of their intelligence or social functioning (including learning difficulties);
e) the impact on them of the subject matter or facts relevant to the case;
f) their relationship with a party or witness (examples being sexual assault, domestic abuse or intimidation – actual or perceived); and
g) social, domestic or cultural circumstances.
If a factor is identified, consideration should then be given to whether this may adversely affect the ability of a party or witness to participate in proceedings and/or give evidence. The practice direction sets out that 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.
PD1A gives the court a broad discretion in respect of the type of ‘special measures’ that can be ordered. A non-exhaustive list is provided at paragraph 10 which exactly mirrors the special measures that may be deployed in the Crown Court. One measure the court may order is that the vulnerable person be questioned “through an intermediary”, which is what the claimant sought in this matter.
HHJ Bird noted that until a relevant vulnerability is identified the court cannot decide what protective measures are required. The issue of relevant vulnerability and capacity were disputed by the defendants and the parties had not yet exchanged medical evidence. HHJ Bird held that it was too early for the court to determine this point.
HHJ Bird also commented that there was nothing in the CPR to suggest that permission to instruct an intermediary must be obtained. The claimant had proceeded back-to-front:
“Even when dealing with expert evidence, the rules do not require permission be obtained before instructions are given. Permission is required before any such evidence can be relied upon at trial. It is commonplace for expert reports to be obtained and then for permission to rely upon the report to be sought”.
On this basis, permission was denied.
This finding once again highlights that the practice direction is intended to introduce appropriate safeguards for a vulnerable party or witness to fully participate at trial or any court hearing. However, even if a relevant factor which may cause a vulnerability has been distinguished, the court cannot determine what appropriate safeguards would look like for that individual until such times as a relevant vulnerability has been identified and that individuals’ ability to participate in proceedings has been decided upon by the court.
This is of particular relevance regarding cases involving allegations of abuse. As a victim of sexual abuse, this is a factor which may cause a vulnerability however this is not necessarily going to adversely affect the individual’s ability to participate in proceedings and the court will still need to consider this.
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