On 6 April 2021 an update to the Civil Procedure Rules will help vulnerable parties and witnesses to navigate litigation. The new rules acknowledge that vulnerability can impede a party or witness’s ability to participate in proceedings, and diminish the quality of their evidence. They attempt to level the inequality caused by this disparity.
Jonathan Gray, a solicitor at Pryers, looks at how the changes will look for medical negligence and personal injury solicitors. As we will see, the wording of the rules might mean they are frequently applicable in these areas of law.
The Overriding Objective
The significance of the update is apparent by an amendment to the Overriding Objective. The new Overriding Objective will state that dealing with a case justly includes, so far as is practicable, ensuring:
- Parties are on an equal footing and can participate fully in proceedings, and,
- Parties and witnesses can give their best evidence.
Practice Direction 1A
A new practice direction, Practice Direction 1A, will also be introduced. It will address three key considerations on how the new Overriding Objective should work.
When is a party or a witness ‘vulnerable’?
The first question will be to ask whether a party or a witness is ‘vulnerable’. Practice Direction 1A will provide the following guidance on this:
“A person should be considered as vulnerable when a factor – which could be personal or situational, permanent or temporary – may adversely affect their participation in proceedings or the giving of evidence.”
It will also give the following non-exhaustive list of factors which may cause vulnerability:
- Age, immaturity or lack of understanding
- Communication or language difficulties (including literacy)
- Physical disability or impairment, or a health condition
- A mental health condition or significant impairment of any aspect of intelligence or social functioning (including learning difficulties)
- The impact of the subject matter of, or facts relevant to, the case (e.g. witnessing a traumatic event in relation to the case)
- Their relationship with a party or witness (e.g. being a victim of sexual assault, domestic abuse or intimidation)
- Social, domestic or cultural circumstances.
The fact that the circumstances of the case, and their impact, are a relevant factor in assessing vulnerability means medical negligence and personal injury lawyers must be familiar with the new rules as they may apply to many cases.
Is the vulnerability likely to diminish a party’s participation in proceedings, or the quality of the evidence to be given by a party or witness?
Practice Direction 1A will say that when considering whether a factor may adversely affect a party or witness’s ability to participate and give evidence, the court should consider their ability to:
- Understand the proceedings and their role in them
- Express themselves throughout the 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.
What should the court do when a party or a witness is vulnerable?
Practice Direction 1A will give only very general guidance. It will say that the court:
- Should consider “whether it is necessary to make directions as a result”.
- “may order appropriate provisions to be made to further the overriding objective”.
- “should take all proportionate measures to address these issues in every case”.
From 6 April 2021, 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”
This recognises the additional work or cost to help a vulnerable party through the litigation process and tries to ensure they are not punished because of it.
Other changes that come into effect on 6 April 2021
These updates come courtesy of The Civil Procedure (Amendment) Rules 2021 (SI 2021 No 117) and the 127th Update to the Practice Directions. Jonathan has summarised the details of other changes, in relation to costs and Part 36, in a separate article.