Issue 39 October 2021 - Journal - Page 36
Individuals and the Court Process:
Proposed Changes to CPR 45 in Light of
Recent Amendments to the Overriding Objective
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.
a comprehensive approach and therefore provides a
greater remit to assist individuals.
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.
Practitioners are encouraged to identify any 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
The new Overriding Objective states:
“2) Dealing with a case justly and at proportionate cost
includes, so far as is practicable –
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.
(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.
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 crossexamination. This can lead to unnecessary adjournments and wasted costs. One can see how the same
could apply to cases involving vulnerability.
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 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.
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.
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.
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.
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.
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
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