There are some rule changes coming into force in April this year, introduced by the Civil Procedure (Amendment) Rules 2021, these come into force on the 6th April 2021.
AMENDMENT TO THE OVERRIDING OBJECTIVE
The new rules are referred to, but not linked to, in the Courts and Tribunals Judiciary website. So far as the overriding objective is concerned the website states that the new rule
“amends the CPR’s Overriding Objective, following the recommendation in the report by the Civil Justice Council on Vulnerable Witnesses (published in February 2020) in civil proceedings. 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. It also deals with the costs (not Fixed Recoverable Costs) provision for additional work or expense incurred due to vulnerability of a party or witness.”
VULNERABLE WITNESSES IN CIVIL PROCEEDINGS
This issue was looked at on this blog in April 2018 when Professor Penny Cooper looked at the guidance that was available to the civil courts to assist vulnerable witnesses.
The Civil Justice Council issued a consultation paper in August 2019.
This led to the Civil Justice Council publishing “Vulnerable Witnesses and Parties within Civil Proceedings” in February 2020. It was this paper that led to the rule change and the Practice Direction set out below.
THE NEW PRACTICE DIRECTION
We do have the full text of a new Practice Direction 1A, in relation to the participation of vulnerable witnesses.
“PRACTICE DIRECTION 1A – PARTICIPATION OF VULNERABLE PARTIES OR
WITNESSES
This practice direction supplements CPR Part 1
1. The overriding objective requires that, in order to deal with a case justly, the court should ensure, so far as practicable, that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence. The parties are required to help the court to further the overriding objective at all stages of civil proceedings.
2. Vulnerability of a party or witness may impede participation and also diminish the quality of evidence. The court should take all proportionate measures to address these issues in every case.
3. 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.
4. Factors which may cause vulnerability in a party or witness include (but are not
limited to)—
i. Age, immaturity or lack of understanding;
ii. Communication or language difficulties (including literacy);
iii. Physical disability or impairment, or health condition;
iv. Mental health condition or significant impairment of any aspect of their intelligence
or social functioning (including learning difficulties);
v. The impact on them of the subject matter of, or facts relevant to, the case (an
example being having witnessed a traumatic event relating to the case);
vi. Their relationship with a party or witness (examples being sexual assault, domestic
abuse or intimidation (actual or perceived));
vii. Social, domestic or cultural circumstances.
5. When considering whether a factor may adversely affect the ability of a party or witness to participate in proceedings and/or give evidence, the court should consider their ability to—
(a) understand the proceedings and their role in them;
(b) express themselves throughout the proceedings;
(c) put their evidence before the court;
(d) respond to or comply with any request of the court, or do so in a timely manner;
(e) instruct their representative/s (if any) before, during and after the hearing; and
(f) attend any hearing.
6. The Court, with the assistance of the parties, should try to identify vulnerability of parties or witnesses at the earliest possible stage of proceedings and 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.
7. If the court decides that a party’s or witness’s ability to participate fully and/or give best evidence is likely to be diminished by reason of vulnerability, the court may identify the nature of the vulnerability in an order and may order appropriate provisions to be made to further the overriding objective.
8. Subject to the nature of any vulnerability having been identified and appropriate provisions having been made, the court should consider ordering “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 to be put in place for that person.
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