SPECIAL MEASURES IN A CIVIL CASE: AN EXAMPLE OF HOW IT WORKS

Taking special measures to protect witnesses is a well known feature in the family and criminal courts. They are less well known in the civil courts.  An example can be seen in the judgment of Deputy Master Marzec in  IMX v Bicknell [2024] EWHC 2183 (KB).  The case illustrates the practical difficulties the courts face, particularly when there is a litigant in person.

THE CASE

The claimant brought an action for personal injuries against her stepfather. He had sexually abused her from the age of 8 onwards. He had been convicted in the criminal courts.   In the civil action he represented himself and wanted to ask questions of the claimant.

THE JUDGMENT ON THE  SPECIAL MEASURES THAT HAD BEEN TAKEN (AND HOW IT WORKED IN PRACTICE)

The judge set out the special measures that were taken to protect the claimant.

1. 1. Although it is not at all unusual for special measures to be imposed at a criminal trial involving vulnerable parties, it is less common for special measures to be a feature of a civil hearing. Upon application by the claimant dated 21 March 2024, I imposed special measures for the hearing of the assessment of damages.

1. 1. I heard the application on 12 June 2024 and granted it, on the basis that it appeared to me that the claimant was a vulnerable person pursuant to PD 1A of the CPR by virtue of the impact upon her of the subject-matter of the hearing, her relationship between her and the defendant, who was her abuser, and her psychological vulnerability. On the last point the claimant’s application was supported by a witness statement from Dr Cooling.

1. 1. The measures imposed were in summary that the claimant could give her evidence from a remote location, namely her counsel’s chambers; that the defendant would submit his questions for cross-examination of the claimant to the judge two weeks before the trial; that such questions as were approved would be verbalised by the judge, who would, in effect conduct the cross-examination, and not put by the defendant himself. In addition, the defendant was not permitted to address the claimant directly during the hearing, and the claimant and the defendant would not see each other during the hearing. Having had regard of the observations of Mr Justice Ritchie as to potential unfairness in GKE v Brett Nigel Travers Gunning [2023] EWHC 332 (KB) at [82] to [87], I assured the defendant that the claimant would not be shown the questions before the cross-examination. In order to ensure the integrity of the process, I also ordered that when the claimant gave evidence she should have with her in the room only her solicitor, who should remain on camera for the duration of her evidence.

1. 1. These measures presented a number of unforeseen practical challenges. First, at the prescribed time the defendant submitted to me four separate lists of questions in pdf form, collectively numbering just under 70 pages. Neither the pages nor paragraphs were numbered. Since the documents were not in Word form, they could not easily be digitally marked. I made manuscript amendments to the defendant’s list of questions before the hearing, but the fact that my notes were in manuscript meant I could not share my list of questions as amended with the defendant. I do not criticise the defendant for the presentation of these documents, because I had not given him specific directions as to how they should be presented.

1. 1. Secondly, the wording of the defendant’s questions was not appropriate given that the judge and not the defendant himself would be verbalising the questions. He had drafted them using the first person. He had also included an apology and expressions of regret in the list, and also included a statement of his belief that he had done this best to make amends and compensate the claimant in the only way he could. Not only could I, as the judge, not address the claimant as if I were the defendant, the defendant’s remorseful sentiments did not properly form part of a cross-examination.

1. 1. Third, the list of questions was very long and repetitive. The questions nearly all focused on the continuing relationship between the claimant and the defendant since the abuse, during the claimant’s adult life. There was some basis for this line of questioning given the contents of both the claimant’s evidence and her expert’s reports, and it was clear that it was extremely important to the defendant that he should be allowed to establish that he had done his best to make amends during past four decades of the claimant’s life. However, neither the nature of continuing adult relationship between the claimant and the defendant nor the defendant’s attitude towards the abuse was relied on in aggravation, and therefore, despite the defendant’s focus on these matters, it was not necessary for the claimant to be questioned at length about them. I chose some general questions to elicit the claimant’s attitude towards the defendant and their adult relationship and also some questions as to a number of specific incidents to which the defendant wished to draw the court’s attention which supported his case as to what on his case became, in adult life, a relationship of genuine affection or at least friendliness. Had I not cut down the number of questions considerably, the cross-examination would have taken many hours and would not have assisted me in reaching a decision any more than the sample list of questions I put did.

1. After the cross-examination I gave the defendant a chance to consider the questions and answers and whether he wanted any follow-up questions asked before re-examination. The defendant did have some follow-up questions, most of which I put to the claimant, but he did not express any dissatisfaction with the way the hearing had gone and appeared pleased with what it had elicited and with the fact that, as he put it, the claimant had given truthful answers. I too was impressed by the straightforward and candid nature of the claimant’s answers to the cross-examination questions. Her answers conveyed that, on the whole, the adult relationship between herself and the defendant had been superficially amicable and supportive, although she said that underneath she has hated the defendant from the moment the abuse started. She said that whilst she was “part loving daughter, part of me … loathed him“. The claimant and defendant have not had any contact for some six years.