AN EXAMPLE OF A TRIAL WITH VULNERABLE WITNESSES: EACH WITNESS GIVEN A CLEAR ALLOCATED TIME TO GIVE THEIR EVIDENCE

This blog has looked, several times, at the judgment of Mr Justice Johnson in  TVZ & Ors v Manchester City Football Club [2022] EWHC 7 (QB). It is also worth looking at for the explanation the judge gives as to the steps taken to deal with the claimants who were clearly vulnerable witnesses.

THE CASE

The claimants had all been extremely promising young footballers.  They had all been abused by a coach, Bennell, who claimed he was a representative of the defendant football club. The trial concerned issues of limitation and vicarious liability. The defendant did not dispute the claimant’s factual account that they had been abused.

THE JUDGMENT RELATING TO THE PROCEDURE ADOPTED AT TRIAL

The judge set out the steps that had been taken to provide protection to the claimants who were all vulnerable witnesses.

  • There was a considerable degree of cooperation between the legal teams in the preparation for trial and the presentation of the evidence. The bundles (“ebundles”) were provided electronically in accordance with the court’s directions. Additional documentation that was generated during the trial was added to the existing ebundles. There was (subject to some minor issues that were easily resolved) an agreed generic bundle comprising a core volume and separate volumes for each claimant, and separate volumes for medical literature, book extracts, and authorities. The total page count was in the region of 11,000 pages, indexed, paginated, bookmarked, and hyperlinked in a well-structured and helpful manner.
  • The agreed medical evidence is that each claimant is suffering from a psychiatric disorder and that these proceedings have the potential to impact on their mental health. Each claimant is potentially vulnerable within the meaning of Civil Procedure Rules Practice Direction 1A. I conducted a pre-trial review in July 2021. It was agreed that the trial timetable would be arranged so as to ensure 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. That provided a degree of certainty for each claimant and enabled him to prepare and have in place any necessary support arrangements. Each claimant gave evidence in their allotted slot.
  • The claimants (after being given an opportunity to take advice) all agreed that their names could be used in the course of the oral evidence (but with the reassurance that reporting restrictions were in place to prohibit reporting of their names outside the courtroom). This meant that witnesses were able to give evidence freely without worrying about inadvertently mentioning a name that was subject to reporting restrictions. It also avoided the potential dehumanising effect of using cyphers instead of names.
  • In the course of the opening of the case, MCFC repeated what it had said in correspondence: it would not challenge the claimants’ accounts of the abuse. That assurance was given to each claimant at the start of cross-examination. The claimants were not therefore cross-examined in relation to the abuse. There was, to a limited extent, questioning around some of the circumstances surrounding the abuse, but only insofar as that was necessary to test their accounts of subsequent difficulties, and to provide a platform for the expert medical evidence. Arrangements were made to enable the claimants to attend parts of the trial by video-link. That meant that they were able to participate in the proceedings and provide instructions, but without having to sit in the courtroom (particularly when Bennell was giving evidence).
  • It was clear that many, possibly all, of the claimants found the process of giving evidence, and the proceedings more generally, stressful, and difficult. I am, however, satisfied that the quality of their evidence was not diminished by reason of any vulnerability, and nor was their ability to participate fully in the proceedings and to give their best evidence. Their evidence was vivid, compelling, distressing, and credible. Of course, given the period of time since the events in question there are details such as dates, times, and places where there is obvious scope for error, failings in recollection and false recollections. In some instances, a claimant had a firm recollection of a detail on which it is convincingly shown that he must be wrong (for example, in one case, being abused on their birthday, and going to school the next day, when the next day must have been a bank holiday). There is also the possibility, stressed by MCFC, of reattribution and confirmation bias. None of these matters was due to any vulnerability on the part of any of the claimants.
  • MCFC also made it clear that the accounts given by a number of supporting witnesses would not be challenged. The claimants are critical of the late stage at which this indication was given. But it did avoid a number of witnesses having to give oral evidence (their evidence instead being adduced in unchallenged written form). With helpful cooperation between the parties and their legal teams, the overall length of the trial was shortened from that which had originally been forecast.
  • I received excellent written and oral opening and closing submissions which were tightly focussed on the key issues, and on the matters on which I had invited particular assistance. I am grateful to counsel and the wider legal teams for the manner in which this sensitive case was conducted.

 

A REMINDER OF THE TERMS OF THE PRACTICE DIRECTION

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.