Supporting vulnerable clients in litigation

Mental capacity is an area spoken about frequently among lawyers, with modern litigators becoming better acquainted with capacity issues in litigation and how to navigate them.

However, there is another demographic of society and therefore potentially your client base, who have capacity to litigate (or fluctuating capacity) but are also vulnerable more generally. These clients require a tailored approach in order to achieve the best results for them.

A person’s vulnerability may take many forms, any may be an unseen vulnerability. There are many different factors which could indicate your client might be vulnerable, for example:

• Being either elderly or very young.
• Physical disabilities.
• Illness.
• Cognitive impairment (e.g. dementia).
• Learning difficulties.
• Brain injuries.
• Limited reading and writing abilities.
• Neurodiversity (e.g. ADHD, autism).
• Alcohol / drug addiction.
• Being isolated with a lack of family / social network.
• Being heavily reliant on others for care, support or accommodation.
• Experience of physical or sexual abuse.
• Poverty.
• English as a second language.

Of course, just because your client has one or more of the above risk factors, it does not inherently mean they are vulnerable. However, it is important to stay alert to any relevant factors throughout your dealings with any particular client and to try to adapt how you provide your services to meet their needs.

You should also be mindful that any actions taken by your client (for example entering into an agreement to settle a dispute) could later be challenged on the grounds of a lack of capacity or undue influence etc. because of their vulnerability. It is therefore important to take all reasonable steps to avoid the possibility of such claims in the future. Naturally, reasonable and appropriate steps will vary depending on the particular client, however some general guidance and ideas are set out below.

Practical Considerations

Communicating is something many of us take for granted, but it can present challenges. It may be that your client has hearing difficulties and therefore prefers to communicate via email or to lip-read via video-call, rather than by conventional telephone call. Perhaps another client struggles to read and it would therefore be best for you to speak over the telephone or in person. If your client has problems with their memory, it may be helpful to record meetings or send a note afterward setting out what was discussed and agreed. It is worth bearing in mind some clients may have limited or no access to the internet or a computer. They might also have a phone with limited minutes.

Some clients may be assisted by receiving information in large print, Braille, plain/simplified language or with the use of diagrams. For those with certain neurodivergent or visual conditions, providing text on a coloured background rather than a white background can make it easier for them to read.

If your client’s English is limited, consider whether the assistance of a translator would be appropriate or whether concepts can be explained in more simple language. If translation is provided through family member, consideration should be given to whether there is any potential conflict of interest and whether a third party translator would be more appropriate.

In any case, it is important not to make assumptions and to establish a client’s preferred method(s) of communication at the outset of a matter and to make any colleagues or third parties (e.g. experts, Counsel), who are likely to deal with that client, aware of their preference. These points can be particularly important with someone whose mental capacity may be borderline, or fluctuate, as it will demonstrate supporting a client to make their own decisions as required by the Mental Capacity Act 2005.

Accessibility

Consider whether there might be any difficulties in your client attending court or a meeting at your office or with an expert witness. Meetings should take place wherever the client feels most comfortable, insofar as that is practical: would a remote meeting or home visit be more appropriate? Is the building or room wheelchair accessible? How will your client travel there – is it accessible for them via public transport? Would it be helpful to arrange transport for them? Are there induction loops available for those who are hard of hearing?

Perhaps your client might prefer to meet at a particular time of day. For example, if they have dementia or brain injury, they may be at their best in the morning. You should also think about whether you need to allow extra time for the meeting and whether the client would benefit from breaks and / or the meeting being split up over multiple days.

Where court hearings are concerned, you will need to consider these issues well in advance so that you can ensure any required technology is set up and the court has plenty of notice of any specific requirements.

For those hard of hearing, there is software available which can convert speech to text in real time (although bear in mind that 100 per cent accuracy is rare). Perhaps a sign language interpreter or deaf-blind interpreter would assist. If your client lip-reads, it is important that the room is well lit and you should remind all attendees that when they speak they should be facing the client, so that the client can clearly see their mouth.

It might help to provide a map and easy-to-follow directions to a precise meeting point (courts can be particularly confusing to navigate) as well as a stage-by-stage breakdown of what the client can expect to happen on the day well in advance.

Taking instructions

It might be that your client has a family member, friend or carer who assists them with their legal matter. Their support can be vital in helping them to attend appointments, understand the legal advice given, to make decisions and to communicate their instructions. However, it is important to make sure that it is the client’s instructions that you are acting on, unless the client or a court has provided formal authority for a third party to provide instructions on their behalf.

You should be alert to potential manipulation and coercion by those assisting a vulnerable client. How might a particular decision affect that individual? Do they have anything to gain by pushing the client in one direction or another? Are they in a position of control or power over the client – for example, is the client financially dependent on them? Pay attention to the dynamics in their relationship with the client and how they interact with one another.

Make sure you do not inadvertently fall into the habit of by-passing the client and speaking only to the individual assisting them. Insofar as is possible, you should speak to the client alone from time to time to confirm their instructions and to discuss any concerns you have regarding influence or pressure from those assisting them.

It is hoped that this article encourages you to consider whether your clients may be vulnerable and whether there are any steps you can take to help to support them. Of course, each client is unique and their particular needs will vary.

Susannah Foden is an associate and Gareth Ledsham is a partner at Russell-Cooke LLP russell-cooke.co.uk

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