THE VULNERABLE CLAIMANT GIVING EVIDENCE: GROUND RULES AND INTERMEDIARIES: “I HAVE STRONG RESERVATIONS ABOUT WHETHER ANY OF THE GROUND RULES WERE NECESSARY”

In the judgment today  in Morrow v Shrewsbury Rugby Union Football Club Ltd [2020] EWHC 379 (QB) Mrs Justice Farbey considered a case that involved a vulnerable claimant.  The judgment contains some scepticism as to whether  the ground rules set out beforehand and the use of an intermediary were necessary.   There is an ongoing consultation on these issues (referred to in the judgment).

“I have strong reservations about whether any of the ground rules were necessary. The intermediary served no useful role. Nothing that the intermediary did could not have been done by counsel and solicitors performing their well-defined roles founded on training, experience and professional ethics; or by the court in the exercise of its wide discretion to control proceedings and having the benefit of extensive expert evidence.”

THE CASE

The claimant was seeking damages for personal injury. Liability was admitted.   It was the claimant’s case that he was a vulnerable witness and that grounds rules as to questions, and the use of an intermediary, was necessary in order for him to have a fair trial. There was a ground rules hearing and an intermediary was allowed.  However the judge expressed concern as to whether the intermediary understood her role and whether, in fact, any of the ground rules were necessary.

THE JUDGMENT ON THIS ISSUE

There had been a preliminary hearing where the claimant was allowed the use of an intermediary, there had been an earlier ground rules hearing before the trial judge.

Preliminary hearing before HHJ Bird

1. 1. At an interim stage, the claimant applied to the court for the appointment of an intermediary on the grounds that he suffered from significant anxiety and depression which made him a vulnerable party. HHJ Bird considered the application at a hearing on 17 September 2019. In his ruling delivered on the same day, he allowed the application on fair trial grounds but ordered a ground rules hearing to take place.

   2. In the context of criminal proceedings, Parliament has determined which witnesses (other than the accused) are to be treated as vulnerable and so eligible for special measures designed to help them give their best evidence to the court. The situation is different for vulnerable defendants but I do not need to deal with their position here.

   3. In brief, section 16 of the Youth Justice and Criminal Evidence Act 1999 lays down eligibility for special measures for witnesses who are vulnerable on grounds of age or incapacity, including witnesses suffering from mental disorder within the meaning of the Mental Health Act 1983 and those who otherwise have a significant impairment of intelligence and social functioning. Section 17 deals with vulnerability on grounds of fear or distress which would diminish the quality of the witness’s evidence.

   4. It is now well-established that the court should consider “ground rules” before a vulnerable witness is to give evidence in order to determine what directions are necessary in relation to the nature and extent of that evidence, the questions to be asked by the advocates and any other necessary modifications of the court’s procedures. One of the special measures available for the assistance of vulnerable witnesses is a requirement that the witness be examined through an intermediary (section 29 of the 1999 Act). The intermediary’s role is to assist the witness to understand questions and communicate answers. It is not a general witness support role which is provided by others within the criminal justice system. An intermediary is independent of the parties and owes his or her duty to the court.

   5. In the criminal law context, judges and advocates now have the benefit of the various toolkits in the well-respected Advocate’s Gateway which may be found online and which aims to support the identification of vulnerability in witnesses and defendants and the making of reasonable adjustments. Toolkit 16 concerns intermediaries and states that the role of the intermediary is to “support effective communication to enable vulnerable defendants and vulnerable witnesses to participate effectively in the criminal justice system”.

   6. In November 2017, the Family Procedures Rules were amended to include specific provisions in relation to vulnerable witnesses: see Part 3A and Practice Direction 3AA. Under the Rules, the role of an intermediary is to communicate questions put to a witness or party; communicate the evidence given by the witness or party in reply to questions; and explain questions or answers so that witnesses, parties and the court understand the questions and the evidence. Toolkit 13 of the Advocate’s Gateway provides guidance.

   7. In the context of civil proceedings, there are no specific provisions dealing with vulnerable parties either in legislation or in the Civil Procedure Rules. In August 2019, the Civil Justice Council (“CJC”) issued a consultation paper seeking views on change. The consultation paper states that vulnerable parties and witnesses in civil proceedings are not a homogeneous group. The paper recognises that vulnerability may be caused by a person’s mental condition which may “hamper” access to justice.

   8. The CJC recommended that the Civil Procedure Rule Committee should consider amending the CPR to focus the attention of all civil judges, parties and advocates on the issue of vulnerability. The CPR should be amended to reflect the principle that the requirement to deal with a case justly includes the court and the parties ensuring that (i) all parties can effectively participate in proceedings; and (ii) all witnesses can give their best evidence. The court and parties should consider whether a party’s participation in the proceedings, or the quality of evidence given by any 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.

   9. The CJC had in mind the provisions relating to vulnerable witnesses in both the criminal and family courts, including the use of intermediaries to ensure that a vulnerable person is able to communicate with and understand the court, thereby giving his or her best evidence.

   10. There is a toolkit in the Advocate’s Gateway dedicated to civil proceedings which mirrors some of the learning gleaned from criminal proceedings but which refers to the court’s wide discretion in jurisdictions where there is no definition of the concept of vulnerability.

   11. Although the CPR do not deal expressly with the adjustment of procedures for vulnerable witnesses, it was not in dispute that this court has a general case management power to consider such adjustments and to make appropriate directions in order to ensure that the claimant was able to give his best evidence.

Ground rules hearing

1. 1. I held a grounds rules hearing on 25 October 2019. The purpose of the hearing was to consider what adjustments were needed in order that the claimant should understand the questions put to him by the advocates and be able to communicate his answers to the court.

   2. For the purpose of the hearing, I read reports by the intermediary (Ms Sara Draper) dated 19 August 2019 and 22 October 2019. She holds a BSc (Hons) in Speech and Language Therapy from the University of Manchester. She is a member of the Royal College of Speech and Language Therapists and a Communicourt accredited intermediary.

   3. I asked the intermediary a number of questions relevant to her role. I asked these questions myself on the grounds that it is the court’s duty to ensure the fairness of proceedings and on the grounds that her duty would be to assist the court in eliciting the claimant’s best evidence. Neither party objected to such a course which was convenient in the circumstances.

   4. The intermediary said that she would have a role in helping the claimant to communicate: she denied that she would be present in order to give him general support. She would ensure that his anxiety would not get in the way of him communicating or understanding the evidence.

   5. I was left uncertain as to how the intermediary was qualified to do this. She was in my judgment unable to demonstrate any qualification, expertise or experience in determining when a person’s anxiety becomes a bar to effective communication. In a case involving extensive expert opinion about the claimant’s anxiety and other psychological problems, she could in my judgment have nothing to add.

   6. Asked how she would assist the claimant to communicate with the court, she said that she would observe his behaviour as a witness. She would have gained insight into his behaviour through time spent getting to know him. Some people are slow to react and can “shut down” when asked questions. If a person is normally able to answer questions quickly, the intermediary would infer that any delay in responding to counsel’s questions would be a sign of vulnerability. In my judgment her answers lacked cogency. I decline to infer that a person who pauses in answering a question in cross-examination thereby demonstrates an inability to communicate. That is not the court’s experience.

   7. I asked why the intermediary – rather than the court – should asses when the claimant was in need of a break from giving evidence. She said that she would be in the best position to see when he was struggling. I was left none the wiser as to why I would not be able to see this for myself.

   8. I asked about the recommendation in the intermediary’s report that counsel should keep questions short as the claimant “gets overloaded” if sentences have more than four key words. She said that a key word means an information-carrying word that is important for understanding the sentence: if the word were to be forgotten or its order in a sentence were to be changed, the meaning of the sentence would change. In my judgment, it is not realistic to expect counsel to prepare questions on this loose and vague basis.

   9. I also had concerns that the intermediary may not have been aware of the precise nature of her duty. Her second report recognised that her duty is to the court but she suggested also that part of her role was to assist the claimant’s communication during conferences with his legal team. For reasons that I need not spell out, the court is not concerned with a party’s legal advice. The second report also suggested that she would intervene should she take the view that questioning from counsel did not adhere to the ground rules. However, the court makes the ground rules and it is a matter for the court to assess whether they are breached. The intermediary is not an umpire.

   10. The intermediary suggested that she would assist the advocates with rephrasing problematic questions. In my view, it is not the role of an intermediary to take over the reins and make demands, or even requests, of counsel during the course of questioning. That would be a dangerous course. I was also concerned to prevent the intermediary from communicating with the claimant while giving his evidence on the grounds that there was in my view a more than negligible chance that she might unintentionally influence what the claimant was saying.

   11. The written reports suggested that the intermediary would remain in court even when the claimant was not giving evidence in order to assist him in understanding the proceedings. However, a person whose duty is to assist the court ought not to become involved with a party in this untransparent manner which could give rise to the intermediary performing her role in a way and to a degree that the court would be unable to scrutinise or even know about.

   12. That said, the defendant did not ask me to discharge the intermediary or to go behind Judge Bird’s order. I did not regard the defendant as prejudiced in any way by Judge Bird’s order and so, at the end of the ground rules hearing, I made the following directions:

i. The intermediary would sit with the claimant to facilitate his communication while giving his evidence and guide him through the trial bundles. This rule reflected that the intermediary’s role was not to provide general witness support but to aid communication and comprehension.

ii. The intermediary should not interrupt the claimant while he was giving evidence and should not speak to the claimant without the court’s permission. If the intermediary felt that the claimant did not understand a question or that he needed a break, she should let the court know without interrupting the evidence. This rule was designed to ensure that the intermediary did not unintentionally influence the claimant’s evidence to the court.

iii. The court would be mindful to allow additional breaks as and when required by the claimant. This rule was designed to ensure that the court retained control of the course of the evidence while allowing the claimant to have a break if stressed.

iv. The intermediary should be discharged once the claimant had completed his evidence. This rule was to ensure that the intermediary had no formal role after her duty to the court had been performed. If the claimant needed any assistance after that, it was the professional duty of his solicitors to provide it or to secure that it was provided.

v. The court dispensed with the need for advocates to be robed. This rule was designed to decrease the formality of the trial, with a view to putting the claimant at ease.

vi. The claimant was permitted to bring blank paper into the witness box when giving evidence. I was told that this rule would aid the claimant’s concentration.

vii. Counsel for the claimant was permitted to carry out a brief examination of the claimant – beyond the adoption of his witness statement – in order to settle the claimant’s nerves.

1. I refused to make any rules that would constrain the nature or content of counsel’s questions. It goes without saying that both counsel were aware of best practice in questioning an anxious witness, including the need to avoid structurally complex or compound questions. It would lie within my case management powers to interrupt if I considered that any question was unfair. Mr Brown in any event very properly indicated that he had no objection to laying down signposts so that the claimant would be aware that Mr Brown was moving from one topic to another and would know the general direction of the questions in cross-examination.

2. I made it plain that the ground rules were not set in stone but I would keep them under review as a matter of fairness. In the event, it was not necessary to revisit any of the rules.

3. I should also record the exemplary assistance of court staff before and during the trial. They arranged an appropriate courtroom with an adjacent private room for the claimant to use when he wished to be on his own. Court staff arranged for the claimant to visit and familiarise himself with the courtroom prior to the commencement of the trial. They modified the witness box to allow more space so that the claimant was not cramped or hemmed in. These practical measures meant that reasonable adjustments were made for the claimant’s stated needs.

4. The intermediary’s contribution to the proceedings was negligible. On a couple of occasions, she asked whether the court could take a break during the evidence but I was unsure why she chose those moments to make such a request as opposed to other moments. She gave some minimal assistance to the claimant when he was looking for documents in the bundles but he was capable of finding the documents for himself.

5. The claimant gave no indication that he could not follow questions or that he could not give the answers that he wanted to give. The intermediary did not raise any comprehension or communication difficulties with the court.

6. Mr Brown conducted his cross-examination with conspicuous fairness. He took matters slowly and carefully so that the claimant could follow the questions. As I have mentioned, I permitted the claimant to take blank paper into the witness box as an aid to concentration. He did not appear to use the paper. He gave evidence forcefully and fluently.

7. I have strong reservations about whether any of the ground rules were necessary. The intermediary served no useful role. Nothing that the intermediary did could not have been done by counsel and solicitors performing their well-defined roles founded on training, experience and professional ethics; or by the court in the exercise of its wide discretion to control proceedings and having the benefit of extensive expert evidence.