Vulnerable parties and witnesses - a new (old) approach

From 6 April 2021, new rules require civil court judges to ensure that vulnerable parties can participate fully in legal proceedings, so far as is practicable. They must also try to ensure that vulnerable parties and witnesses can give their 'best evidence'.

The civil courts deal with a variety of legal issues, including commercial disputes, personal injury/clinical negligence claims and property/housing matters. Participants in such cases come from all walks of life but some will have circumstances that make their involvement in legal proceedings that much more difficult.

The new rules recognise that vulnerability can be caused by a number of factors, including age, communication/language difficulties, physical or mental health conditions (including learning difficulties), or circumstances giving rise to a case or a relationship with another party or witness. It could also arise from a variety of social, domestic or cultural circumstances.

Judges must now consider whether a person's vulnerability is likely to affect their participation or evidence in the legal proceedings. If so, the judge has to take all proportionate measures to try to address that particular person's difficulties.

The judge could for instance set 'ground rules' relating to the type of evidence to be given and the conduct of the lawyers who might cross-examine the vulnerable person. They should also consider any other type of support that should be put in place.

The civil courts have been relatively slow to apply this structured approach to recognising and assisting vulnerable people. The criminal justice system has had a range of 'special measures' in place for vulnerable witnesses for more than twenty years. These measures can include providing screens to shield a witness from the view of a defendant, allowing them to give evidence through video-link or even recording interviews and cross-examination before trial.

The family courts have also forged ahead of their civil law counterparts. Since 2017, a ground rules hearing has been required in any case where a judge has decided a vulnerable party or witness should give evidence. Judges in such cases must also consider making 'participation directions', which could include setting restrictions on how a vulnerable person can be cross-examined (such as by agreeing a list of topics beforehand).

Lawyers and judges will also have to consider the implications for vulnerable participants of the drive to increase the number of 'remote' court hearings, e.g. those held by video-link. An extensive programme of court reforms is under way, with HM Courts and Tribunals Service aiming to deal with many more cases outside physical courtrooms (and save a substantial amount of costs in the process). How will this affect those who struggle with digital skills and/or don't have internet access, some of whom will be vulnerable court users? 

These are just some of the practical issues that may emerge when vulnerable people navigate the court system. The new court rules will rightly focus attention, at an early stage, on whether participants in a case are vulnerable. However, the rules' effectiveness will depend upon lawyers and judges taking a collaborative approach, with the vulnerable person, and taking appropriate steps to support them.