THE USE OF INTERMEDIARIES IN CIVIL CASES: APPLICATION TO RELY ON INTERMEDIARY REFUSED: NO PERMISSION WAS NEEDED AND THE EXTENT OF THE CLAIMANT’S VULNERABILITY WAS UNCLEAR

December 5, 2024 · by · in Applications, Civil Procedure, Personal Injury

In CXC v Clarke & Anor [2024] EWHC 3138 (KB) HHJ Bird dismissed the claimant’s application for permission for an intermediary be appointed to report to the court.  The judge held that there was no requirement for permission. The application was dismissed. The judge held that the issue of costs being paid by HMCTS would be determined at another time, however if the claimant was seeking an order that HMCTS pay the costs of the intermediary then it would need to be made a party to the application.

“… there is in my judgment no requirement for permission to instruct an intermediary. It is in any event premature to consider instruction because the extent and nature of any vulnerability and whether the vulnerability is a relevant vulnerability remains unclear.”

THE CASE

The claimant had settled a personal injury case in 2009.  The claimant was seeking an order that the settlement be set aside on the grounds that the claimant lacked capacity to conduct litigation from 2007.  They had been involved in a subsequent accident and the injuries sustained in that accident may have affected their capacity.  The assessment of her capacity now is unlikely to assist on the question whether she had capacity in 2007 – 2009.

THE CLAIMANT’S APPLICATION FOR AN INTERMEDIARY

The claimant made an application for permission to obtain report from a registered intermediary to advise on how they could best engage in the proceedings. The claimant also sought an order that HMCTS pay the costs of obtaining the report.

 

ENSURING THE PARTICIPATION OF VULNERABLE WITNESSES

 

 

Giving Directions

    1. Where a person with a relevant vulnerability is to give evidence, the court will consider what directions, including “special measures”, “ground rules” or other support, are necessary to comply with the overriding objective.

 

    1. How the court will deal with directions (what if any to make and whether a hearing is required) will vary from case to case. In a straightforward case where, for example, the intermediary will have no involvement in the trial itself directions might be given without a hearing. CrimPR PD 6 notes that “the greater the level of vulnerability the more important it will be to hold……a hearing” (see para.6.1.4).

 

    1. The term “ground rules hearing” is not used in the CPR. CrimPR 3.9 defines what a ground rules hearing is in the Crown Court. It sets out the detail of what should happen at such a hearing and makes clear (see CrimPR 3.9(2)(b)) that “ground rules” relate to “the conduct of questioning of the witness or defendant“.

 

    1. The FPR deals with ground rules hearings at FPR PD 3AA paragraph 5. Such a hearing is required when a vulnerable person will give evidence and is to be held before the hearing at which the evidence is to be given.

 

    1. PD1A gives the court a broad discretion in respect of the type of “special measures” that can be ordered when a person with a relevant vulnerability is to give evidence (paragraphs 8, 9 and 10). A non-exhaustive list is provided at paragraph 10 which exactly mirrors the “special measures” that may be deployed in the Crown Court (for witnesses but not for defendants) and which are set out at sections 23 to 30 of the 1999 Act (see CrimPR 18.1). One “special measure” the Court may order is that the vulnerable person be questioned “through an intermediary” (see PD 1A paragraph 10(f). The Crown Court equivalent is a direction under section 29 of the 1999 Act).

 

    1. FPR3A.8 sets out a list of “measures” similar to the “special measures” set out at PD 1A paragraph 10. The FPR list includes a measure to provide for a party or witness to participate in proceedings with the assistance of an intermediary.

 

    1. CrimPR 18.23 makes it clear that in the Crown Court if an intermediary is appointed the duration and purpose of the appointment should be considered.

 

    1. A ground rules hearing therefore relates to the way in which the Court will make arrangements in respect of how a vulnerable person will give evidence. In practice, the making of arrangements to allow for a vulnerable party to participate fully in proceedings should be made at the same time. The name given to the hearing is unimportant. If an intermediary is potentially to be involved in the trial (whether to assist a witness or to support a party) arrangements should generally be made at a hearing and in the presence of the intermediary.

 

Intermediary’s report

    1. PD1A makes no reference to an intermediary report. It is however clear that such a report is likely to be a key factor for the court to consider when deciding what (if any) protective measures are to be made.

 

    1. CrimPR 18.28 provides comprehensive guidance on the content of an intermediary’s report. It must (amongst other matters) explain why, in the particular case, intermediary assistance is thought to be necessary and make recommendations (with reasons) about the intermediary’s participation in the trial. It will necessarily address what is the minimum level of protective measure required.

 

    1. The Ministry of Justice regularly publishes a “Registered Intermediary Procedural Guidance Manual“. Although the manual is directed at criminal proceedings, the then current version was cited with approval by the Court of Appeal in Isbilen [2024] EWCA Civ 568. Section 4 of the manual (paragraphs 4.19 to 4.38 in the 20204 version) sets out a model structure for the report which might form a usual basis for such a report in civil proceedings. It is not an expert report and therefore CPR 35 does not apply to it.

 

Is Permission to instruct an intermediary required?

    1. There is nothing in the CPR to suggest that permission to instruct an intermediary must be obtained. Such a requirement would be unusual. Even when dealing with expert evidence, the rules do not require permission be obtained before instructions are given. Permission is required before any such evidence can be relied upon at trial. It is commonplace for expert reports to be obtained and then for permission to rely upon the report to be sought.

 

    1. Where the Crown Court is considering the appointment of an intermediary to facilitate the defendant’s effective participation in the trial it must consider “recommendations in any intermediary’s report received by the court” (CrimPR 18.23(2)(b)). CrimPR 3.9(3) requires that the Crown Court to have regard to any intermediaries’ report before “setting ground rules” or giving directions at a ground rules hearing.

 

    1. The CrimPR make clear what is, in my judgment, implicit in the FPR and in PD1A, namely, that the intermediary’s report is required before the Court can consider if directions for the use of an intermediary are necessary. Permission is required to use an intermediary but not to obtain an intermediary’s report.

 

Directing the use of an intermediary

    1. Guidance given in the Family Court seems to me to be equally applicable in civil cases. Taking the guidance provided by Lieven J in West Northamptonshire Council v KA and NH [2024] EWHC 79 (Fam) and endorsed by Williams J in A, B, X and Y the following points emerge:

 

i) The appointment of an intermediary to assist a witness giving evidence or to assist a party to participate in proceedings is a matter for the Court. The agreement of the parties does not, of itself, justify appointment. The Court is free to depart from recommendations made in the intermediary’s report.

ii) An intermediary should only be appointed if the appointment is necessary.

iii) Appointment will only be necessary if lesser steps (directions or provisions) would not be sufficient to address the vulnerability.

iv) If an intermediary is to be appointed, their role and the periods of engagement should be specified. Each should be no more that is necessary. A “whole trial” order would be “exceptionally rare“.

v) In dealing with these issues the Court can proceed on the basis that advocates (who will be aware of the relevant vulnerabilities) will prepare appropriately in particular by being familiar with the guidance set out in the “Advocate’s Gateway” and will adapt the style in which they pose questions to the particular circumstances of a given witness. The Court can also proceed in the basis that the court process will have been explained to a client or a witness in appropriate language before the start of the hearing.

The Applications

    1. For the reasons I have given there is in my judgment no requirement for permission to instruct an intermediary. It is in any event premature to consider instruction because the extent and nature of any vulnerability and whether the vulnerability is a relevant vulnerability remains unclear. I therefore dismiss the application for permission.

 

  1. I propose to adjourn the question of extending time for the Claimant’s witness evidence to be served to a date to be set on the application of the Claimant. That application would best be dealt with once the issue of relevant vulnerability has been resolved.

 

COSTS OF THE INTERMEDIARY

 

  • HMCTS appear to meet the general costs of intermediaries. The application seeks an order that HMCTS pay the costs of instructing the intermediary. As I have dismissed the application for permission to instruct, I need not deal with the issue of costs. In my judgment, given that HMCTS have policies in place dealing with payment it would in any event be better to leave the issue of payment to the usual application process. If HMCTS wrongly (in breach of their stated policies) refuse to pay, then the proper remedy is likely to be a public law remedy. In any event, before I made any order against HMCTS in respect of costs I would want to hear from them which would probably involve having them joined in to the proceedings.
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