VULNERABLE WITNESSES IN THE CIVIL COURTS: THE VULNERABLE WITNESS SHOULD NOT HAVE BEEN SHOWN CROSS EXAMINATION QUESTIONS IN ADVANCE:

There are relatively few cases relating to vulnerable witnesses in civil courts. In GKE v Gunning [2023] EWHC 332 (KB)  Mr Justice Ritchie considered the terms of an order made to protect a vulnerable witness.  Although the wording of the order meant that the claimant’s legal team should see the questions in advance, he held that it was inappropriate for those questions to be shown to the witness ahead of the trial.   The judge also held that the terms of the order did not mean that the witness, whilst giving evidence remotely, could not be seen by the court and advocates. However the defendant was not permitted to view her directly.

“It is my view that giving the questions to the Claimant in advance created was not fair to the Defendant and created an unlevel playing field and degraded her evidence. The Defendant was not provided with the cross examination questions from the Claimant’s counsel in advance.”

THE CASE

The judge was giving judgment in a case where the claimant brought an action alleging abuse of trust in the defendant’s treatment of her as a counsellor/coach.

THE VULNERABLE WITNESS ORDER

Ahead of the trial the claimant had obtained a vulnerable witness order. This stated that the cross examination questions should be sent to the claimant’s legal team in advance.  The judge held that the order should not have been construed as one where the claimant herself was allowed to see the questions and discuss them with her legal team.

THE JUDGMENT ON THIS ISSUE

1. 1. Cross examination of the Claimant was procedurally different from cross examination of the Defendant. A few weeks before the trial the Claimant applied, based on the psychiatric evidence of Doctor de Taranto in her second report, for a vulnerable witness order. That order was made by another Judge on the 18th of January 2023 and required the Defendant to serve and file a list of questions by the 31st of January 2023. The order specifically permitted the Claimant to raise any objections to the cross examination questions at the start of the trial. The Claimant was permitted to attend the trial by video link and the Defendant was barred from cross examining the Claimant directly. The trial judge was required to verbalise the Defendant’s questions from the list. In the event the Defendant drafted 86 questions which were sent to the Court and to the Claimant. I found out halfway through re-examination of the Claimant, that not only had the Claimant’s lawyers seen the questions, but the Claimant herself had been shown the questions before the trial and so had (potentially) been through them with her lawyers.

1. 1. The CPR practice direction 1A is a relatively new addition to the Civil Procedure Rules and springs in all likelihood from the protection of vulnerable witnesses provided in criminal cases. It was introduced on the 6th of April 2021. The purpose, set out in the notes to the Civil Procedure rules, was to enable vulnerable parties and witnesses to participate to the fullest extent in proceedings. The rule change was the product of the Civil Justice Council (CJC) report on vulnerable witnesses. In paragraph 203 of that report the CJC considered but dismissed the idea of providing a service of trained lawyers to ask the litigant in person’s questions of the victim of alleged sex abuse and suggested, if necessary, the questioning could be undertaken by the judge at trial. I have not found anywhere in the CJC report the suggestion that the Claimant, who was not a child and did not have learning difficulties, should herself be permitted to read the written cross examination questions in advance of cross examination taking place.

1. 1. Whilst I make no criticism of the Claimant’s lawyers for interpreting the wording of the vulnerable witness order made in this case as permitting them to take instructions on the written questions. It is my view that giving the questions to the Claimant in advance created was not fair to the Defendant and created an unlevel playing field and degraded her evidence. The Defendant was not provided with the cross examination questions from the Claimant’s counsel in advance. When this issue arose and during his closing submissions the Defendant expressed his astonishment and disbelief that this could have occurred and submitted in the strongest terms that it was unfair. I have sympathy with that submission. As a result I have taken great care to approach the Claimant’s cross examination answers with the unlevel playing field in mind.

The Claimant’s video evidence

1. 1. The Claimant gave evidence by video link. She was in counsel’s chambers accompanied by her solicitor. In the notes to CPR Part 32.3, which permits evidence by video link, the VCF Guidance notes are summarised and it is specifically pointed out that the Court does not have the same degree of control over a witness at a remote site compared to one in court. In addition an extract from the judgment of Andrew Baker J in Navigator Equities v Deripaska [2020] EWHC 1798 (Comm) is set out. A witness was giving evidence from counsel’s chambers in that case. The judge commented as follows:

“9. I do not suggest there is any reason to think anything inappropriate occurred or was likely to occur in this case, but nonetheless I do not regard what happened as entirely satisfactory. If a witness is to give evidence remotely, where he or she will be and who (if anyone) will be with them, and why, should be discussed between the parties in advance. That is always so, in my view, but especially it is so if the arrangement may be such that there could be interaction with the witness during their evidence that will not be visible to the court. Any arrangement other than that the witness will be on their own during their evidence should be approved by the court, in advance if possible, and parties should not assume that an arrangement will be approved just because (if it is) it is agreed between them. Sensible arrangements discussed and agreed in advance are likely to meet with approval if the court does not identify any difficulty of possible substance that the parties may have overlooked. But it must be for the court, not the parties, to control how it receives the evidence of witnesses called before it. I acknowledge that the parties were not asked by the court in advance to specify the witness arrangements here. They should have been, and that they were not is my responsibility, but equally parties should not wait to be asked.”

1. 1. I am not aware of whether any such arrangements were put before the interlocutory judge when the vulnerable witness order was made.

1. Initially the Claimant was off screen because this had been arranged by her lawyers. However the vulnerable witness order did not permit the Claimant to give evidence screened. After discussion with counsel for the Claimant and the Defendant an arrangement was made whereby the Defendant could not see the Claimant on screen but I could see her and so could counsel. The Claimant gave evidence within my view. I then proceeded to read each of the 86 questions drafted by the Defendant in cross examination. I should say that the Claimant ‘s lawyers only objected to one of the questions and only as to the wording of four words. Those words were changed.