The Civil Justice Council (CJC) has set out detailed changes it believes should be made to the Civil Procedure Rules to help vulnerable parties and witnesses, including an amended overriding objective.
The CJC called for more funding for litigant in person (LiP) schemes but stopped short of calling for a ban on the cross-examination of vulnerable witnesses by unrepresented parties, a feature of the draft Domestic Abuse Bill.
The 150-page report, Vulnerable Witnesses and Parties Within Civil Proceedings, followed a consultation launched by the CJC last September.
The CJC did not define ‘vulnerable’, given “the difficulty with framing a definition which is sufficiently broad and flexible”, but made clear it covered mental and physical disabilities, as well as those experiencing “fear or distress”.
It proposed adding to CPR 1.1(2)(a), ‘ensuring that the parties are on an equal footing’, the words ‘and can fully participate in proceedings’.
Further, it put forward another example of ‘dealing with a case justly and at proportionate cost’ for the list: ‘(g) ensuring that witnesses can give their best evidence.’
The CJC also recommended a new practice direction to directly address vulnerability in a way that would help LiPs and lawyers identify circumstances where courts might consider someone vulnerable and what measures they might take.
On costs, the CJC proposed amending the definition of proportionality in CPR 44.3(5) to include additional work generated by the vulnerability of parties/witnesses.
The CJC said the Ministry of Justice (MoJ) should consider putting a provision “within every fixed or scale costs regime for a discretion to consider a claim for an amount of costs which is greater than the fixed recoverable costs” to cater for the consequences of measures put in place to cater for vulnerability.
The government is proposing in the draft Domestic Abuse Bill to prohibit direct cross-examination of a victim by any party who has been convicted, given a caution or charged with a specified offence or against whom there was an on notice protective injunction.
The CJC said that after “consultation and detailed consideration”, it did not recommend extending this to non-family civil cases, saying that “if necessary, questioning could be undertaken by judges”.
A long list of reasons was cited for keeping the status quo, including the “limited number” of cases in which a ban would apply, “likely difficulties” with the appointment of suitably qualified representatives and existing powers under the CPR.
The CJC said there was a “clear need” to recruit more court intermediaries for the civil and family courts and it called on the MoJ and the courts service to review “as a matter of urgency” the use of intermediaries.
The report called for more funding by the MoJ of its LiPs support strategy, including the Support Through Court scheme which gives free advice to LiPs.
Among its other recommendations, the report called for better training for judges, lawyers and mediators, assessments of the impact of the court reforms on vulnerable witnesses, national and local court protocols and better data gathering – as a “basic minimum” tracking the number of vulnerable parties and witnesses who appear before the civil courts.
The CJC working group that produced the report was set up in May 2018, following a request from the MoJ.
His Honour Judge Barry Cotter QC, who chaired the group, said the CJC had recommended “immediate and widespread changes to rules, practices, training and resources” in its report.
“The public consultation undertaken by the CJC highlighted very real concerns about the current level of assistance for vulnerable people in civil proceedings, and also the lack of data.”