The black parade

When I was a young boy
My father took me into the city
To see a marching band
He said, “Son, when you grow up
Would you be the savior of the broken
The beaten and the damned?”

-Welcome to the Black Parade, My Chemical Romance

Next week, the consultation process closes on how the concept of vulnerability should be accommodated in the proposed reforms to fixed recoverable costs: a copy of the consultation paper can be found here: Consultation of extending fixed recoverable costs FRC how vulnerability is addressed. The issue of vulnerability is a worthy topic, and one that has hitherto, been, if not neglected, then certainly below the radar of many judges and lawyers in the context of civil proceedings.

Over many years the criminal courts and family courts have made great strides in ensuring that vulnerable witnesses can fully engage in court proceedings. Thus where a witness or a party, has mental health problems or a learning difficulty, ground rules for the hearing and cross examination will be set at a preliminary hearing, where a child is to give evidence, their testimony may be recorded before the trial, for use at trial, where a victim of abuse has to give evidence, screens will be put in place, and they will be sequestered from other witnesses and so on. Notoriously, the civil courts have lagged behind these welcome innovations. There has historically been little consideration of the need to make adjustments, or accommodations for vulnerable witnesses or parties.

In 2020, the Civil Justice Council published a report called Vulnerable Witnesses and Parties Civil Justice Council Report which set out how the civil courts needed to move to ensure that vulnerable parties and witnesses in civil proceedings become fully engaged with the process. This report has already partially been implemented, by some reforms to the Civil Procedure Rules. The reforms apply both to case management provisions, and to costs.

The law has moved through amendment to the Civil Procedure Rules 1998 to specifically provide for adjustments to case management processes and additional costs recovery in the context of a vulnerable party. A case involving a vulnerable party is one contemplated by rule 1.6 CPR and Practice Direction 1A, which came into force on 6th April 2021.

Rule 1.6 CPR provides that in effect one goes to Practice Direction 1A to provide the detail of who is vulnerable and how the court is meant to accommodate a party or a witnesses vulnerability:

Practice Direction 1A makes provision for how the court is to give effect to the overriding objective in relation to vulnerable parties or witnesses.

So, one turns to Practice Direction 1A which provides the following criteria for judging whether someone is vulnerable or not:

A person should be considered as vulnerable when a factor – which could be personal or situational, permanent or temporary – may adversely affect their participation in proceedings or the giving of evidence.

Factors which may cause vulnerability in a party or witness include (but are not limited to)—

(a) Age, immaturity or lack of understanding;

(b) Communication or language difficulties (including literacy);

(c) Physical disability or impairment, or health condition;

(d) Mental health condition or significant impairment of any aspect of their intelligence or social functioning (including learning difficulties);

(e) The impact on them of the subject matter of, or facts relevant to, the case (an example being having witnessed a traumatic event relating to the case);

(f) Their relationship with a party or witness (examples being sexual assault, domestic abuse or intimidation (actual or perceived));

(g) Social, domestic or cultural circumstances.

It will be seen that the factors listed at (a) to (g) in paragraph 4 are not exclusive, there can be other factors which might make someone vulnerable, but the mere existence of such a factor will not, without more, make them vulnerable for the purpose of the rules. Additionally, the factor must adversely affect their ability to participate in the proceedings or their giving of evidence.

Taking language as an example, someone may have English as their second language, and not speak it with the ease and facility of a native speaker, but if it is adequate to enable them to understand the proceedings and give cogent evidence, they are not going to be vulnerable for the purpose of the rules. Conversely, someone who cannot speak English at all, will likely be vulnerable.

Thus, the court when considering whether someone is sufficiently at a disadvantage, to be vulnerable or not, must consider the factors identified in paragraph 5 to gauge the impact of their disadvantage on the key elements of taking part in proceedings:

When considering whether a factor may adversely affect the ability of a party or witness to participate in proceedings and/or give evidence, the court should consider their ability to—

(a) understand the proceedings and their role in them;

(b) express themselves throughout the proceedings;

(c) put their evidence before the court;

(d) respond to or comply with any request of the court, or do so in a timely manner;

(e) instruct their representative/s (if any) before, during and after the hearing; and

(f) attend any hearing.

Assuming that vulnerability is made out, the court must consider what case management provision needs to be made in consequence of that vulnerability. Paragraphs 6 and 7 are of general application:

The court, with the assistance of the parties, should try to identify vulnerability of parties or witnesses at the earliest possible stage of proceedings and 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.

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. This may include concealing the address and/or contact details of either party or a witness for appropriate reasons.

Thus, the onus will be on the claimant’s lawyers to raise vulnerability, to have it identified at case management stage, and then consider what elements of case management need to be adjusted, and in what way, to mitigate the vulnerability.

Paragraph 8 gives an example which has the most obvious application in the case of a child or a person with a learning disability

Subject to the nature of any vulnerability having been identified and appropriate provisions having been made, the court should consider ordering ground rules before a vulnerable person is to give evidence, to determine what directions are necessary in relation to—

(a) the nature and extent of that evidence;

(b) the conduct of the advocates and/or the parties in respect of the evidence of that person;

(c) whether one or more special measures and/or any other support should be put in place for that person;

(d) any duty or power of the court under any enactment or its inherent jurisdiction to prohibit, limit or modify cross-examination of or by a vulnerable witness or to appoint a legal representative to conduct a cross-examination.

The costs rules were amended in the following way. The new provisions on vulnerability noted above, were supplemented by a specific amendment to rule 44.3(5) which provided expressly that when assessing costs on the standard basis the court must take into account:

(f)       any additional work undertaken or expense incurred due to the vulnerability of a party or any witness

This amendment reflected the views of the Civil Justice Council expressed in the 2020 report which were as follows:

Subject to the views of the Ministry of Justice (which should be obtained given overarching considerations as to the recovery of costs in civil litigation generally) the Council believes that the Civil Procedure Rule Committee should consider amending the definition of proportionality within CPR r.44.3(5) to include reference to costs referable to steps necessarily taken in light of vulnerability. This would allow the Court to manage costs within proportionality constraints, whether by costs management,232 in those cases to which this discipline applies, or by retrospective assessment in the remainder of cases.

Thus, it should be noted that where multi-track cases are concerned, and costs budgeting takes place, the additional likely element of costs spend on e.g., interpretation costs, home visits, additional conferences, should be identified and explained in any budget prospectively. The idea is that the court will use this definition of proportionality to “budget in” the additional costs created by vulnerability at the case management stage when directions and budgets are set.

As the report notes:

This would mean that the court retained control of the determination of the suitable measure, by selecting that which is the reasonable and proportionate one (which may not be the adjustment chosen by the party, nor at the cost suggested by the party). It also means that parties and their representatives will need to address any vulnerability at an early stage as the court is unlikely to permit variations to a budget under CPR PD 3E 7.6, if the alleged significant development is something that the party/representative ought to know about at the time of directions/costs management. This will assist in efficient case management, effective use of court time and provide early transparency of the costs to the parties to enable them to make informed decisions about pursuing/resisting a claim. The reverse side of this flexibility within the costs management regime is that if particular vulnerabilities only come to light late in the day, these may be addressed by applications to vary.

From time to time, a party who can be described as “vulnerable” will make a claim and will find that her entitlement to costs is fixed under part 45 CPR, notwithstanding the fact that more work will need to be undertaken on her claim, or her disbursements may be higher, because for example, a medical expert may have had to make a home visit to carry out a medical examination as noted above. How is this dealt with currently?

No amendment was made to the rules on fixed costs under part 45 CPR: because no such amendment was necessary, as the court already has ample power under rule 45.29J to make an increased allowance in fixed costs cases, where additional costs are incurred by reason of the vulnerability of a witness or party.

Thus, the Civil Justice Council report which presaged the amendments, Vulnerable Witnesses and Parties within Civil Proceedings expressly considered the application of rule 45.29J in this context and stated:

In respect of cases falling within Sections II and IIIA (claims which no longer continue under the RTA or EL/PL pre-action protocols and claims to which the pre-action for the resolution of package claims applies), CPR 45.13 and CPR r.45.29J respectively, provide that if a court considers that there are exceptional circumstances making it appropriate to do so, it will consider a claim for an amount of costs which is greater than the fixed costs referred to in CPR 45.11 or CPR 45.29B to 45.29H.However, there is no similar provision in Section III (pre-action protocols for low value personal injury claims in road traffic accidents, employers’ liability and public liability, or in respect of fast track trial costs (the only permitted increase being an additional amount in respect of improper behaviour under CPR 45.39(8)).

The Council believes that the Ministry of Justice should consider whether there should be a provision within every fixed or scale costs regime for a discretion to consider a claim for an amount of costs which is greater than the fixed recoverable costs to cater for the consequences of specific, identified measures which have been necessary to cater for vulnerability.

Although the requirement of exceptionality is a high bar, cases involving vulnerable parties will necessarily be examples of the exception, rather than the rule, will usually require a higher expenditure in costs and in order for a vulnerable party to obtain access to justice will warrant the exercise of the discretion in a vulnerable claimant’s favour. However, it should be noted that there is a requirement to exceed a margin of 20% on fixed costs, for the court to “tinker” with costs entitlements.

The consultation paper, proposes to expand this approach to apply more generally in relation to the new expanded regime of fixed recoverable costs by developing the new rules accordingly. This aspect of the proposed rule changes on fixed recoverable costs is to be welcomed as it deals with the scenario of  ensuring that where costs are necessarily greater than the prescribed figures, by reason of the fact that someone is vulnerable, then a solicitor will not be held to the prescribed figures, but can ask for an additional amount of costs to reflect the additional work they have done, by reason of someone’s vulnerable status.

 

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