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Published 1 July 2021
On 6th April 2021 a new Rule 1.6 and Practice Direction 1A (PD1A) were introduced into the Civil Procedure Rules (CPR), their aim being to ensure that appropriate steps are taken to ameliorate any impediment to participation in proceedings or diminution in the quality of evidence of vulnerable parties or witnesses.
No one would deny that the stated aims of these changes are entirely appropriate. Nevertheless, the lack of specificity is unhelpful with paragraph 7 of PD1A saying:
“If the court decides that a party’s or witness’s ability to participate fully and/or give best evidence is likely to be diminished by reason of vulnerability, the court may identify the nature of the vulnerability in an order and may order appropriate provisions to be made to further the overriding objective.”
It has been an understandable concern on the part of defendants that in attempting to protect the vulnerable the courts could find itself being asked to make directions and determine issues in a way which prejudices a defendants ability to defend a claim, tipping the odds in favour of claimants.
It is unlikely that there are claims where parties and witnesses are more likely to be vulnerable than those involving historic abuse. In one such case handled by DAC Beachcroft, one of the arguments deployed in opposition to an application for the defendants to be granted permission to rely on their own psychiatric evidence was the vulnerability of the claimant.
In XX v A Council the claimant, (C), made allegations of serious sexual assaults dating back to their childhood in the 1980s. C had instructed an expert psychiatrist and obtained a report in support of their claim. The defendant (D) sought permission to obtain its own psychiatric evidence to challenge C’s case. C opposed this application arguing, in effect, that the court should determine all issues of quantum solely on the basis of the expert of C’s own choosing
One of the lines of argument deployed in support of C’s position was that they were, as a result of the abuse, a vulnerable party and that an examination by another expert for the D would add to their distress if they had to re-live the abuse again. The way forward, it was argued on behalf of C, was for D to ask C’s expert questions pursuant to CPR Part 35.
At the hearing of the application, D was represented by Caroline Lody, counsel, of 7 Bedford Row, instructed by Joanne Kingsland of DAC Beachcroft. It was submitted that the claim involved serious allegations of physical and sexual abuse (which are not admitted) and that the causation issues were complex with the psychiatrist providing a retrospective diagnosis about symptoms which are said to have been present a number of years ago and giving an opinion on causative attribution relating to C’s entire adult, working life. Further, the vast majority of C’s damages claim was predicated upon their alleged psychiatric injury, with expert psychiatric evidence likely to involve contentious matters going to the very heart of quantum.
It was also submitted that within the field of psychiatry there is frequently a range of opinion and that it is not at all unusual for psychiatric experts to disagree about diagnosis, causation and attribution, with experts often permitted to give oral evidence at trial due to differences between them, even after joint statements, enabling the trial judge to decide which expert’s opinion they prefer. Without having C examined by its own expert and a written report being produced, D would not merely be hindered but likely completely prevented from being able to advance an alternative case on diagnosis, causative attribution and prognosis. This would not be cured by Part 35 questions and D would have to cross-examine “blind” and would have no evidential basis for advancing an alternative case.
While acknowledging that C would doubtless find it unpleasant to recount their experiences several times in the course of litigation, it was submitted that experts are trained and accustomed to dealing with such matters sensitively and professionally. Further, the report of the Civil Justice Council upon which the rule changes around vulnerable parties and witnesses were based specifically considered the issues arising in respect of vulnerable parties/witnesses in sexual assault/abuse cases, namely: the basis on which criminal convictions are to be challenged, ground rules for oral evidence, prohibiting cross-examination by a self-representing party, conduct of the hearing by the judge and legal representatives, and costs issues.
The Report however did not propose that claimants should be permitted to rely on an expert of their own selection, unilaterally instructed, and that defendants should not be permitted to instruct their own experts in sexual abuse cases, PD1A being framed in terms of practical case management to assist vulnerable parties inside court.
The judge considered all the arguments put by both sides and granted D permission to obtain its own psychiatric evidence. There was, the court found, no evidence that C would be adversely affected by further examination, expert psychiatrists understanding the need for sensitivity. It was necessary bearing in mind the issues in the case that D be able to respond to C’s evidence and that in order for the court to deal with the case justly, as required by the overriding objective, D had to be able to operate on a level playing field with C.
Few cases have yet come before the court where the issue of vulnerability and how that should be addressed has arisen and it will be some time before there is a body of case law to guide claimants and defendants alike. PD1A(1) states:
“The overriding objective requires that, in order to deal with a case justly, the court should ensure, so far as practicable, that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence. The parties are required to help the court to further the overriding objective at all stages of civil proceedings.”
The changes to the CPR were introduced to ensure that the vulnerability of a party or a witness does not impede their participation in the case or diminish the quality of their evidence, the court being required to “take all proportionate measures to address these issues in every case”: they are not there to make life easy for a party or witness at the expense of justice. The courts have a difficult time ahead of them in striking the correct balance and ensuring that justice is done to all.
For more information or advice, please contact one of our experts in our Specialist Liability team.
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