The Civil Justice Council (CJC) has urged rule changes to help litigants take part fully in court proceedings, including a duty on parties to reveal vulnerabilities among participants.
In a consultation paper, the CJC said it had already talked to judges and personal injury lawyers and now wanted to reach a wider audience.
Support for vulnerable parties or witnesses – defined as those with mental or physical disabilities or who suffered from fear or distress – already exists in the criminal and family courts. The government asked the CJC to examine how something similar could be applied in the civil courts.
The context lies in recommendations made by the Independent Enquiry into Sexual Abuse, begun after the Jimmy Savile sexual abuse scandal, which found that the victims and survivors of abuse in civil cases needed the same protection as vulnerable witnesses in criminal cases.
Looking more broadly at the civil justice system, the CJC recommended that the CPR be changed to “focus the attention of all civil judges, parties and advocates upon the issue of vulnerability”.
It went on that the court and parties needed to identify who was vulnerable at the earliest stage possible and consider whether judges should make directions as a result, and improve training for civil judges.
Other recommendations included that:
- directions questionnaires should include the vulnerability of parties or witnesses;
- parties should be under an obligation to disclose known details of the vulnerability of another party or witness;
- HM Courts and Tribunal Service (HMCTS) should review the funding of intermediaries in civil cases and train court staff to deal with vulnerable court users;
- the Judicial College should reconsider its treatment of applications for compensation orders in cases of sexual assault or abuse; and
- HMCTS should ensure that individual court centres prepare operational protocols covering assistance and protections that could be given to vulnerable parties and witnesses.
When it asked the Civil Justice Council to examine the issue, the Ministry of Justice said there seemed to be “clear room for improvement in the way that claims relating to child sexual abuse cases are managed by parties and the court”.
More broadly, research carried out by the ministry in 2010 found that court users with mental health conditions and learning disabilities suffered from “legal language and terminology… barriers to their understanding of the court process, whilst a number stated that they experienced problems in understanding questions which they were asked in court”.
Meanwhile, a report on lay court users earlier this year by the campaign group Justice recommended “reasonable adjustments” should be made in civil courts in the interests of a fair trial.
A number of changes to procedure in civil and family cases were suggested then. However, apart from improving judges’ training, none of the recommendations were fully implemented.
The number of vulnerable witnesses in the civil courts was unknown, the CJC said in the consultation. But in the criminal courts it was thought to be almost a fifth of court users and a survey found a quarter of claimants in civil cases indicated they had a physical or mental condition.
The consultation period ends on 11 October.