The Civil Justice Council has compiled a consultation report, Vulnerable Witnesses and Parties Within Civil Proceedings: Current Position and Recommendations For Change with recommendations on how to support all vulnerable claimants and defendants. The report was put together by looking at the support already available in the family and criminal courts and how that can be more effectively applied in the civil courts. The paper considers issues arising from the vulnerability of parties and witnesses in all types of litigation but has arisen as a result of a specific recommendation of the Independent Inquiry into Child Sexual Abuse.
The report states: ‘The family courts are regularly faced with allegations of sexual abuse or assault, particularly within public law cases, as well as other vulnerable witnesses and parties, such as the victims of domestic abuse ... Although there are differences in practice between family and civil cases (the former is ordinarily held in private and with anonymity orders in place and in public law cases parties will ordinarily have representation), there is obvious practical sense to this comparison … It is only relatively recently that the family courts have recognised and then acted upon what was perceived to be a failure to appropriately assist vulnerable parties/witnesses … In 2014 the President of the Family Court stated that the family justice system lagged behind the criminal justice system in the practices and procedures available to support vulnerable parties and witnesses and announced the setting up of a Children and Vulnerable Witnesses Working Group. The President pointed out that processes which were tolerated in the Family Court were prohibited by statute in the Crown Court …“there is a pressing need for us to address the wider issue of vulnerable people giving evidence in family proceedings, something in which the family justice system lags woefully behind the criminal justice system.”’
The recommendations are as follows:
'Recommendation 1: Rule changes
... The Civil Procedure Rule Committee should consider amending the current procedure rules (and any relevant accompanying practice directions) to focus the attention of all civil Judges, parties and advocates upon the issue of vulnerability. The rules should be amended to reflect the principle that the requirement to deal with a case justly includes the court and all parties to the proceedings:
i. ensuring that all parties can effectively participate in proceedings;
ii. ensuring that all witnesses can give their best evidence;
and specifically, that the court and parties need:
a) to identify any party or witness who is a vulnerable person at the earliest possible stage of proceedings;
b) to consider whether a party’s participation in the proceedings, or the quality of evidence given by a party or witness, is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make directions as a result;
c) to consider “ground rules” before a vulnerable witness is to give evidence (to determine what directions are necessary in relation to the nature and extent of that evidence, the conduct of the advocates and/or the parties in respect of the evidence of that person, and/or any necessary support in place for that person).
Recommendation 2: Directions Questionnaires and online access
... Directions Questionnaires should be amended to request information as to the vulnerability or potential vulnerability of a party (which should an obligation to disclose know details of the vulnerability of another party) or a witness. Consideration of the wording for the questionnaire
will need to be considered with care and settled upon following consultation with relevant bodies.
.... Any online portal/access which dispenses with directions questionnaires should ensure a request is made for such information.
Recommendation 3: Training for civil Judges
... The Judicial College should consider enhancing the training of civil judges, both salaried and fee paid, in relation to issues of vulnerability to cover, in greater depth than at present, three core elements:
i. Detecting/assessing vulnerability
ii. Case management when a party or witness is vulnerable
iii. Conduct of hearings (to include direct questioning of witnesses)
Recommendation 4: Intermediaries
... HMCTS should review and produce guidance in relation to the use and funding of intermediaries in civil cases.
Recommendation 5: Court protocols and Guidance
... HMCTS should ensure that individual court centres/courts should (after consultation with the Designated Civil Judge and Designated Family Judge) prepare comprehensive operational protocols which should include consideration of the assistance/protections that can be given to vulnerable parties/witnesses given available facilities in both civil and family cases
Recommendation 6: Staff training
... As a matter of urgency HMCTS should ensure all staff who handle civil cases are given adequate training with regard to identifying, communicating with and assisting vulnerable court users.
Recommendation 7: Compensation orders
... The Judicial College should consider the need for guidance /training/re-enforcement of training as to applications for and the making of/refusal to make compensation orders in cases of sexual assault/abuse. The Crown Prosecution Service should also consider its current practices and training in relation to seeking compensation orders.’
Responses should be sent by 23:59 on Friday 11 October 2019: By email: vulnerableparties-CJCemail@example.com By post: Civil Justice Council E205, Royal Courts of Justice Strand London WC2A 2LLRead more here.