Lawyer: How was your first marriage terminated?
Witness: By death.
Lawyer: And by whose death was it terminated?
Witness: Take a guess.
The internet is replete with humorous courtroom exchanges – genuine or apocryphal – between hapless lawyers and intelligent, sarcastic witnesses but the reality is that advocates come prepared with plenty of experience and usually know what they are going to ask. In contrast, most parties and witnesses in civil claims have probably never been inside a court and their ‘preparation’ for the experience itself may have involved watching multiple episodes of Kavanagh QC or similar, largely unrealistic, courtroom dramas.
Such people often regard giving evidence as, at best, uncomfortable; at worst, as daunting or even unthinkable. I have sought to reassure many a client and potential witness over the years that, if they listen carefully and answer the questions truthfully and clearly, they have nothing to fear from giving evidence. However, “black gown syndrome” – as a lay, but medically trained, witness once referred to it in evidence, to the obvious amusement of the Judge – is a real issue for many who want to give their evidence but fear “that my name will be dragged through the mud”, to quote another witness whose statement I took: a nurse of unchallenged competence, who had nothing to fear from giving evidence, but could not be made to believe that.
Add to this a party or witness who is vulnerable and there is a real danger that justice will not be done.
The Civil Procedure Rules – which have governed civil court proceedings in England and Wales since 1999 – are built on the “overriding objective of enabling the court to deal with cases justly and at proportionate cost.” The former includes “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.”
Since April 2021, Practice Direction 1A has made provision for how the court is to give effect to the overriding objective in relation to vulnerable parties or witnesses.
A person should be considered as vulnerable when a factor – personal or situational, permanent or temporary – may adversely affect their participation in proceedings or the giving of evidence. The PD refers specifically to obvious examples: age, immaturity or lack of understanding; communication or language difficulties (including literacy); a physical disability or impairment, or a health condition; and a mental health condition or significant impairment of any aspect of their intelligence or social functioning.
In addition, the court will consider the impact on the party or witness of the subject matter of, or facts relevant to, the case, and their relationship with a party or witness. This latter provision was relevant in the 2022 case of TVZ v Manchester City Football Club, arising out of sexual abuse perpetrated by Barry Bennell when he was a football coach in the 1980s. The defendant accepted that each of the claimants was sexually and emotionally abused by Bennell, in some cases repeatedly, while they were boys aged between 8 and 16 years old. Bennell was currently serving a 34-year prison sentence, having been convicted of sexual offences against young boys on five separate occasions.
By the time the matter fell to be considered by the High Court forty years later of course, the victims were all adults. However, the agreed medical evidence was that each claimant was suffering from a psychiatric disorder and that the proceedings had the potential to impact on his mental health. The court regarded the claimants as potentially vulnerable within the meaning of Practice Direction 1A and, to alleviate their general anxiety and uncertainty, it was ordered that the trial timetable would be arranged so as to ensure that each claimant was given a firm time slot for his evidence, even if that meant re-arranging other witnesses, or interposing witnesses, or short periods when the court would not be sitting. The aim was to provide a degree of certainty for each claimant and enable them to prepare and have in place any necessary support arrangements. Each claimant gave his evidence in his allotted slot.
Most special measures a court might direct are common-sensical and fact-specific: it can direct that a screen be used to protect a witness or party from being seen; evidence can be ordered to be taken by way of a video conference facility, or in private, or played to the court as a pre-recorded video; counsel can be required to dispense with wigs and gowns; a device may be appropriate to help a party or witness communicate if a physical disability inhibits that.
The potential circumstances in which a party or witness might be considered vulnerable are numerous: a child victim of sexual abuse, or a person with learning difficulties, are obvious candidates. But what about an adult, capacitous, claimant in a commercial claim, the loss of whose business led to the breakdown of his marriage, depression and suicidal thoughts? Or one who watched his child die before his eyes and has, understandably, never got over it?
Our adversarial system of civil justice must permit the challenge of crucial evidence. The skill is in allowing this to be done without exploiting or taking unfair advantage of a child or other person with a particular vulnerability. To this end, the onus rests on solicitors taking instructions, and interviewing witnesses, to identify possible ‘red flags’ at an early stage in the proceedings and certainly well in advance of trial, so that the ground rules whereby a person with particular vulnerabilities can give their evidence in a manner fair to both sides can be, ideally, agreed between the parties and then set down by the court.
If you have any questions regarding the article, or have any litigation related queries, please contact Partner John Melville-Smith on [email protected] or 020 7725 8027.