Civil discontent

The criminal and family courts have made strides in support for vulnerable parties – are the civil courts finally about to catch up? Rachel Rothwell reports

"How the courts treat those who are exposed and weak is a barometer of our moral worth as a society.”

Those wise words were spoken by Lord Justice Green in December 2015. He also noted that “many of those we encounter in the criminal and family courts are from troubled backgrounds and have suffered a lifetime of disadvantage, prejudice and abuse”.

But while strides have been made to make specific provision for vulnerable people in the criminal and, more recently, the family courts, the civil courts lag worryingly behind.

This poor state of affairs was picked up on by the Independent Inquiry into Child Sexual Abuse (IICSA) which, in April 2018, recommended a change to the Civil Procedure Rules (CPR) so that civil judges presiding over cases relating to child sexual abuse must “consider the use of protections for vulnerable witnesses”.

This recommendation prompted the Ministry of Justice to task the Civil Justice Council (CJC), an advisory body, to look into the issue. Importantly, it instructed the CJC to take a broad approach and examine what needed to be done to support all vulnerable individuals in the civil courts – not just those whose cases involved abuse.

The result was an 84-page preliminary report with a series of recommendations which were put out for consultation in August this year.

The first recommendation is for a change to the CPR to specifically require the court and the parties to “identify any party or witness who is a vulnerable person at the earliest possible stage of proceedings”.

If there is such a person, the judge should consider setting ground rules to decide what directions might be needed to enable that person to give their best evidence.

For Penny Cooper, chair of independent body The Advocate’s Gateway, this would be a welcome development. She says: “Having a specific hearing on what adjustments need to be made [for a vulnerable witness] would really focus people’s minds.”

Other preliminary recommendations from the CJC include changing directions questionnaires to request information about vulnerability; enhancing the training to be given to judges and court staff; and providing guidance on the use of intermediaries in proceedings.

Defining vulnerability

Identifying that a party or witness is a vulnerable person is easier in some areas of civil litigation than others. For Alison Millar, a solicitor at Leigh Day who specialises in abuse claims, nearly all of her clients are vulnerable in some way.

She explains: “They are dealing with the consequences of a harm they have suffered. Litigation is very stressful because of its adversarial nature, and the focus is on [them] to prove their case. If someone is vulnerable and struggling, any inconsistencies tend to be used against them.”

But David Wedgwood, partner at Anthony Gold, points out: “Vulnerable clients come in all shapes and sizes. Where they are victims of sexual abuse, the client will be signposted as potentially vulnerable. But a lot of other clients are more difficult to identify as vulnerable. It is only as you go along that you realise how vulnerable they may be.

“Contentious probate is a type of claim where you get quite a lot of vulnerable clients; the client might start out as appearing as someone who is not vulnerable, but it can become obvious that they have psychological issues or are vulnerable in some other way.”

He adds: “Vulnerability can be quite hidden. I have a high-functioning client with a brain injury, who is very intelligent and compensates for her cognitive problems. But in doing so, she brings up inconsistencies. When you speak to her about what has happened in the past, you actually have to be quite clear with her about the way she thinks, and how she can say something because it is what someone wants to hear.”

Wedgwood adds that sometimes lawyers can be “quite wary of flagging up a client’s vulnerability”. He says: “That is partly because you have a relationship with the client, and they may be sensitive around being labelled as vulnerable or having mental health problems. But also, some lawyers are worried about flagging them up as not being a very good witness … that’s where education needs to come in.

“The [court] system needs to be adjusted for vulnerable clients. You have to take more time around vulnerable people and make sure that they are able to consider the question and not be tripped up.”

Cooper adds that when it comes to vulnerability,  the focus twenty years ago was on children; it then moved to encompass adults with learning difficulties and dementia. “Now, we have moved”, she adds “to a point in time where people have realised vulnerability is not something you can define easily, and people can come in and out of it.

“There might be circumstances in a particular case that bring out a vulnerability, for example, having to recall disturbing events. Or some people are always vulnerable in terms of a speech related incapacity or problems in reading documents.”

Cooper points out that it is essential for judges to keep a “creative mindset” in making directions. As an example, she recalls a commercial case in which a witness was deaf in one ear, meaning that he would not be able to hear counsel from the witness box. The judge simply sat him on the other side of the room – solving the problem.

Other potential measures civil judges could choose to adopt – taking lessons from the criminal and family courts – include allowing more time for vulnerable witnesses to give evidence, ordering the removal of wigs and gowns, allowing witnesses to give evidence behind a screen or via video link, and the use of interpreters and intermediaries. But such measures can run into practical difficulties.

In its August report, the CJC said many consultees had referred to the difficulty in getting access to video link facilities for civil cases because priority for the equipment was being given to family cases. The report said: “One Designated Civil Judge reported difficulties in providing any of the basic protections that should be available for vulnerable witnesses; video link facilities, screens or even an appropriate entrance – the relevant court currently using the goods loading bay.”

Another judge told the CJC that the performance of technology was “patchy”, and a breakdown of the live link between the vulnerable witness suite and the court was “too common”, the facility not being properly maintained.

Even where resources are available, the CJC reported a general consensus among solicitors that these are not being used widely or consistently – or even “readily” – by judges. One respondent lamented: “I cannot comprehend why a vulnerable witness in a civil case should not have the same level of assistance and protection afforded to them as they would in the criminal or family courts, and even the court of protection.

“Unfortunately, I have had a poor experience of the application of special measures in a civil setting. As a claimant solicitor trying to support a severely brain injured claimant – who was actively suicidal as a result of being told the defendant was able to cross-examine her at trial – I felt like the entire experience was an uphill battle, with very little support, from start to finish.”

For Millar, in the field of abuse-related claims, one of the changes she would most like to see would be legal aid funding for intermediaries who could help people to give their evidence; and clarify for the court the types of question that the witness is able to understand.

The CJC report calls for guidance on the use and funding of such intermediaries in civil cases. Also high on Millar’s wish list would be an end to the limitation defence in historic abuse claims – an issue the IICSA is currently examining.

She explains that the defence, which means the claimant must justify why they did not bring the claim sooner, feels “very confrontational” for clients, and “feeds into their sense of shame and guilt”.

But if the limitation defence was removed, defendants would still have the protection of being able to argue that the length of time that had passed means a fair trial is no longer possible.

In civil abuse claims, particular problems arise where the defendant is the alleged abuser or perpetrator of harm, rather than their insurer or employer. “This can cause difficulties that the civil justice system hasn’t worked through yet,” says Millar.

“For example, in relation to disclosure of information – how can this be done in a way that is safe? Taking a case of what is termed ‘revenge porn’ as an example: there may be confidential medical records and psychiatric reports containing personal information that the claimant would be worried about the defendant seeing. Should this be disclosed only to the defence lawyers and experts, rather than to the defendant?”

Even more difficult is the situation where an unrepresented defendant wants to cross-examine the claimant. Again, this is an area that is still being “worked through”, according to Millar.

Vulnerable parties will need not only physical measures to separate them from the defendant, but also a way of ensuring the defendant’s questions are filtered to avoid the claimant being asked anything inappropriate, for instance, regarding their sexual history.

It is worth noting that the CJC has recommended that the Judicial College should consider the need for “guidance, training, or reinforcement of training” in relation to civil claims concerning sexual abuse.

New challenges

The CJC’s report also gives consideration to how vulnerable people could be affected by the increasing digitisation of the courts. It recommends that any online portal should request information about the potential vulnerability of any party, in the same way that this question is to be added to directions questionnaires in traditional proceedings.

For Cooper, this is particularly important: “We need to be careful about the implications of digitisation. If you have got people attending case management conferences by telephone, they are not meeting the judge [at that early stage] and it is less likely that their vulnerability will be identified.

Speaking on the telephone can also be more challenging for some people with vulnerabilities.” It also means vulnerable people may miss out on the support that is actually there for them. She explains: “Many courts have special units to help, for example, litigants in person.

But if you are not coming to court until the main hearing, you don’t see the signs for these units or pick up a leaflet. You are less likely to see the support that is available. We need more exploration of what digitisation does to our ability to identify vulnerability.”

The CJC’s report closed for consultation on 11 October and its preliminary recommendations have received a warm reception from claimant lawyers. But ultimately, much will come down to solicitors recognising vulnerability within their own clients and understanding how best to support them.

As Wedgwood says: “People are certainly becoming more aware of the issue of vulnerability. On a first meeting with a new client, no lawyer wants to say, ‘I think you are vulnerable’ – in case they take it badly.

But they should have it in the back of their minds. It is something that you always need to have an ear for.” Millar adds: “In the civil courts, the traditional attitude was that you have ‘chosen’ to bring your case; and if it is difficult for you – well, you didn’t have to bring the case.

But that is very old fashioned. If you have special needs, the justice system has to make some accommodation for you. We do need more measures in place. “The justice system must not become another form of abuse.”

Rachel Rothwell is a freelance journalist