Benjamin Clayton discusses proposed amendments to CPR 45, in the context of the recent update pertaining to vulnerable witnesses. Such changes not only take greater account of individual differences, but also put to bed long standing arguments between claimants and defendants.
Following the recommendation in the report by the Civil Justice Council on Vulnerable Witnesses in civil proceedings, on 6th April 2021 the overriding objective was updated to assist vulnerable witnesses and parties in navigating proceedings.
The new Overriding Objective states:
“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;”
There is further the introduction of the new Practice Direction 1 A, which clarifies that vulnerability of a party or witness may impede participation, and also diminish the quality of evidence and that courts should take all proportionate measures to address these issues in every case.
The practice direction sets out that relevant factors could be personal, situational, permanent or temporary and thereby provides a wide ambit. Factors identified include age, immaturity or lack of understanding, communication or language difficulties (including literacy) and physical/mental disability, impairment or a health condition.
The courts will further be required to take account of any potential impact that the subject matter of the facts relevant to the case and any relationship with another individual involved in proceedings may have.
In respect of subject matter, within the practice direction the example of having witnessed a traumatic event is given, which has clear utility in respect of claims involving psychiatric injuries and secondary victims. The examples provided in respect of relationships are sexual assault, domestic abuse or intimidation (actual or perceived), however this is clearly not an exhaustive list.
Once vulnerability has been identified, the court will then need to consider the ability of the witness to: understand the proceedings and their role in them; express themselves throughout proceedings; put their evidence before the court; respond to or comply with any request of the court, or do so in a timely manner; instruct their representatives (if any) before, during and after the hearing; and attend any hearing. This is a comprehensive approach and therefore provides a greater remit to assist individuals.
Practitioners are encouraged to identify and issues of potential vulnerability from an early stage, so as to consider how best to proceed and allow parties/the court to consider appropriate provisions to further the overriding objective.
Given the broad nature of vulnerability, it is perhaps advisable for a proactive approach to be taken in identifying potential vulnerability, as it may be that some individuals will not necessarily make any difficulties known. This may be through reticence or simply a lack of knowledge.
This is something that can occur in cases involving a foreign language wherein representatives have been able to converse with a litigant to an adequate standard pre-litigation, but subsequently difficulties are experienced at trial, such as during a difficult cross-examination. This can lead to unnecessary adjournments and wasted costs. One can see how the same could apply to cases involving vulnerability.
The practice direction identifies that in certain cases it will be appropriate to set ground rules before a vulnerable witness is to give evidence, so that appropriate directions can be made. This may include the nature and extent of evidence, the conduct of advocates and/or parties in respect of that evidence and whether any support needs to be put in place.
Overall, the update is a positive step that recognises the difficulties faced by such individuals and seeks to ensure greater access to justice and fairer hearings. This also brings civil proceedings closer in line to practices long utilised in criminal courts and arguably furthers the aims of the Equality Act 2010.
Although practitioners already need to consider issues of vulnerability owing to the Equality Act, it is considered that a more rigorous approach will need to be adopted moving forward. As identified, the scope of vulnerability is somewhat wider under the practice direction. It can therefore be envisaged that this could lead to increased costs. An example of such can be seen in noise-induced hearing loss claims, where claimants are left with a physical disability, resulting in lengthier communications with their advisors.
It is perhaps therefore of some comfort that now when a court considers costs and their proportionality under rule 44.3(5), it will have to take into account any additional work undertaken or expense incurred due to the vulnerability of a party or any witness. Vulnerability will need to be considered when costs management orders are made.
This appears to be an appropriate and common-sense approach, which provides the best opportunity to ensure that relevant steps are taken; by providing proportionate costs recoverability.
A similar approach, that not only takes account of individual factors, but importantly accounts for the costs of such can be seen in proposed amendments to CPR 45.
The Civil Procedure Rules Committee (CPRC) is said to be amending Part 45 in due course to allow for counsel’s advice to be used in infant settlement hearings and further translation fees.
The subject of both such fees featured in the much-debated decision of Aldred v Cham [2019] EWCA Civ 1780, in which it was held that the fees for counsel advising on child settlements under the RTA protocol and interpreter fees were not recoverable in accordance with CPR 45.29(I) as they were not considered to be ‘a particular feature of the dispute’.
This has had an impact upon claimant practitioners who, by virtue of the rules are required to produce advices on quantum and ensure that documents are translated as appropriate. It was seen by some as a significant barrier to access to justice, as it would simply become financially unviable for some firms to take on such cases. These concerns were in fact acknowledged by the Supreme Court when refusing the application for appeal in Aldred, with Lords Hodge, Briggs and Leggat recommending that the CPRC should consider the implications of the case.
It appears that heed has been taken and consequently CPR 45.29I (h) is to be amended to read “any other disbursement that has arisen due to a particular feature of the dispute or which are required by the rules to be incurred” (amendment in bold).
This rule change does not alter the decision in Aldred, as in that case it was found that the age of a child or language of a litigant were factors that pertained to the individual, not a feature of the dispute. Essentially the rules side-step this decision and allow for such features to be taken account of and costs recovered.
This development, like the amendment to the overriding objective ensures that individual characteristics do not pose as a barrier to justice, which is the cornerstone upon which any legal system is founded.
