Civil Justice Council consultation on vulnerable witnesses and parties in civil proceedings

The Civil Justice Council has issued a detailed paper setting out the current position and proposals for reform of the procedural rules and practices in civil cases in relation to vulnerable witnesses and parties.  The consultation closes on Friday 11 October 2019, and details of how to respond, and the paper, can be found here.

The Council makes seven recommendations, reproduced here for ease:

Recommendation 1; Rule changes

The Civil Procedure Rule Committee should consider amending the current procedure rules (and any relevant accompanying practice directions) to focus the attention of all civil Judges, parties and advocates upon the issue of vulnerability. The rules should be amended to reflect the principle that the requirement to deal with a case justly includes the court and all parties to the proceedings:

    1. ensuring that all parties can effectively participate in proceedings;
    2. ensuring that all witnesses can give their best evidence;

and specifically, that the court and parties need:

  1. to identify any party or witness who is a vulnerable person at the earliest possible stage of proceedings;
  2. to consider whether a party’s participation in the proceedings, or the quality of evidence given by a party or witness, is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make directions as a result;
  3. to consider “ground rules” before a vulnerable witness is to give evidence (to determine what directions are necessary in relation to the nature and extent of that evidence, the conduct of the advocates and/or the parties in respect of the evidence of that person, and/or any necessary support in place for that person).

Recommendation 2; Directions Questionnaires and online access

Directions Questionnaires should be amended to request information as to the vulnerability or potential vulnerability of a party (which should an obligation to disclose know details of the vulnerability of another party) or a witness. Consideration of the wording for the questionnaire will need to be considered with care and settled upon following consultation with relevant bodies.

Any online portal/access which dispenses with directions questionnaires should ensure a request is made for such information.

Recommendation 3; Training for civil Judges

The Judicial College should consider enhancing the training of civil judges, both salaried and fee paid, in relation to issues of vulnerability to cover, in greater depth than at present, three core elements:

    1. Detecting/assessing vulnerability
    2. Case management when a party or witness is vulnerable
    3. Conduct of hearings (to include direct questioning of witnesses

Recommendation 4; Intermediaries

HMCTS should review and produce guidance in relation to the use and funding of intermediaries in civil cases.

Recommendation 5; Court protocols and Guidance

HMCTS should ensure that individual court centres/courts should (after consultation with the Designated Civil Judge and Designated Family Judge) prepare comprehensive operational protocols which should include consideration of the assistance/protections that can be given to vulnerable parties/witnesses given available facilities in both civil and family cases

Recommendation 6; Staff training

As a matter of urgency HMCTS should ensure all staff who handle civil cases are given adequate training with regard to identifying, communicating with and assisting vulnerable court users.

Recommendation 7; Compensation orders

The Judicial College should consider the need for guidance /training/re-enforcement of training as to applications for and the making of/refusal to make compensation orders in cases of sexual assault/abuse. The Crown Prosecution Service should also consider its current practices and training in relation to seeking compensation orders.

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