Vulnerable Witnesses in Civil Claims: an update

The introduction of the Civil Procedure Rules Practice Direction in April 2021 relating to vulnerable parties or witnesses has continued to cause some issues for courts with regard to its practical interpretation for use in civil claims.

The High Court has recently given judgment in relation to a claimant who had obtained a vulnerable witness order. The wording of the order required the defendant to serve and file a list of cross-examination questions for the claimant in advance of the trial. However, it was only halfway through the re-examination of the claimant at trial that it became apparent that not only had her legal team seen the questions, but so had the claimant.

Mr Justice Ritchie found that although her legal team could see those questions, it was inappropriate for the claimant herself to have seen them ahead of trial.

Keoghs Associate Lauranne Nolan considers the finding on this discrete issue in GKE v Gunning [2023] EWHC 332 (KB) and the development in the application of the Practice Direction 1A.

Background

The claimant sought damages in respect of alleged psychiatric injuries caused by the defendant by abusing his position of trust in making sexual comments and communications to her during and between coaching/counselling and therapy sessions, such as asking her to undress and to masturbate in front of him in a therapy session.

The defendant denied the allegations and that any tort had been committed. Although counsel drafted the defence to the pleadings, the defendant was unrepresented at trial due to his professional indemnity insurance being terminated and having no way to fund his defence to the claim.

Court’s findings

The vulnerable witness order, issued by a different judge, specifically permitted the claimant to raise any objections to the cross-examination questions at the start of the trial.

Justice Ritchie found that although Practice Direction 1A was to enable vulnerable parties and witnesses to participate to the fullest extent in proceedings there was nothing contained in the report from the Civil Justice Council that suggested the claimant herself be permitted to read the written cross-examination questions in advance of cross-examination taking place. He was clear in his finding to make no criticism of the claimant’s legal team for interpreting the wording of the order in such a way but found that it was not fair to the defendant and created an unlevel playing field, degrading her evidence.

Justice Ritchie stated in his judgment that he had taken great care to approach the claimant’s cross-examination answers with this in mind as she had potentially been through them with her lawyers in preparation for the trial.

Another element of this case was that the claimant was permitted to attend the trial by video link. Initially the claimant was off screen as this had been arranged by her lawyers. However, the vulnerable witness order did not permit the claimant to give evidence screened. In cases where a claimant (or in criminal proceedings, a victim) chooses to give evidence with special measures, counsel is still permitted to see the claimant in order to question them on their evidence. As the defendant was unrepresented there was an extra layer of difficulty in applying these special measures as a claimant generally seeks special measures as a method to protect themself from being seen by the defendant. An arrangement was reached whereby the defendant could not see the claimant on screen, but the judge and her legal team could. The defendant was also barred from questioning her directly; therefore, Justice Ritchie had to verbalise the defendant’s 86 cross-examination questions.

Conclusion

This finding once again highlights that the practice direction concerning vulnerable witnesses was intended to introduce appropriate safeguards for the claimant as a vulnerable witness to fully participate at trial or any court hearing, but not to the extent that it places the defendant at a disadvantage.