‘Vulnerability’ added to overriding objective and costs rules


Costs: Vulnerability a new proportionality factor

Taking account of the vulnerability of parties and witnesses is to be added to the overriding objective as well as the factors used to determine the proportionality of costs.

The latest update to the Civil Procedure Rules, coming into force on 6 April, includes measures that implement the recommendations of the Civil Justice Council (CJC) a year ago to make explicit provision for vulnerable parties and witnesses.

“The amendment makes it clear that dealing with a case justly includes ensuring that the parties can participate fully, and that parties and witnesses can give their best evidence,” according to a summary of the changes published by the judiciary.

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”.

Rule 44.3(5) says that costs incurred are proportionate if they bear a reasonable relationship to five factors, and the changes will see the addition of a sixth – “any additional work generated or expense incurred due to the vulnerability of any party or any witness”.

However, vulnerability will not be a factor in fixed-costs cases, which goes against the CJC report.

It suggested that the Ministry of Justice 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.

Meanwhile, the update also includes a tweak to part 36. “Following inconsistency in case law, the rule change provides clarity, particularly for litigants in person, that [a part 36 offer] can include accruals of interest but where it is silent on this point, the presumption will be that the offer is inclusive of all interest.”

Other changes of significance include:

  • Service out of the jurisdiction – post-Brexit, permission to serve the claim form is not required in cross-border civil and commercial cases where an applicant is seeking to rely upon the ‘choice of court agreements’ (which deal with reciprocal arrangements as to court venue and enforcement); and
  • Evidence – the prohibition in CPR 32.12 on collateral use of witness statements outside the proceedings in which they are served is extended to affidavits.



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