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  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 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.