Culture shift: vulnerability in the civil courts

Could remote hearings push the civil courts towards protecting vulnerable parties? The Civil Justice Council’s proposals, published pre-pandemic, show how to adapt court procedure – and mindset

By Siân Smith and Iris Ferber


In February 2020 – when COVID-19 was still a minor news item, and the idea of the courts locking down seemed impossible – the Civil Justice Council (CJC) published its report on vulnerable court users.

The Report, Vulnerable Witnesses and Parties Within Civil Proceedings: Current Position and Recommendations for Change, followed recommendations made by the Independent Inquiry into Child Sexual Abuse, about claimants who bring civil claims for sexual abuse.

The Report is far wider, though: it deals not only with those who are potentially vulnerable as a result of the subject of the proceedings (such as sexual abuse), but also those who are vulnerable as a result of external factors, such as learning difficulties or mental illness.

Are civil proceedings lagging behind?

Perhaps because of the particularly serious (and non-voluntary) nature of criminal proceedings, the criminal courts have long had special arrangements to assist the vulnerable. In more recent years, the family courts have followed, and adapted, the lessons of the criminal courts – for the particular sensitivities of family proceedings, and the high numbers of unrepresented parties.

Tribunals have always been more flexible than the court system, and they are used to dealing with highly technical work in a way that is accessible to the large number of their litigants who are unrepresented.

Employment tribunals, in particular, in many of their cases already deal with a claimant’s vulnerabilities as the central issue in the case; so employment judges are used to making procedural adjustments – at least for disabled claimants.

Passivity in the civil courts: a culture shift required

In the civil courts, the problem is not the availability of judicial powers; the powers are already there, in the Civil Procedure Rules.

The problem is the lack of any focus on vulnerability: the Overriding Objective does not expressly refer to participation in the court system by vulnerable people, and there are no questions in any of the civil court forms (claim forms, defence forms, directions questionnaires or pre-trial checklists) requiring either party to direct their minds to any potential vulnerability.

That means that whether or not a vulnerability is addressed depends on a judge happening to notice something; either from a party’s paperwork, or during an interim or final hearing. It is a question of culture, of attitude – not only by the parties and their representatives but, as importantly, by the judiciary and the court administration.

What is going to make the culture shift happen?

What are the CJC’s proposals?

The CJC makes 18 recommendations, many of them concerned with training and funding. The most important recommendations, though, for practitioners in the COVID-19 and post-COVID-19 age, are the proposed procedural and functional changes.

Central to the operation of the proposed new regime will be key duties placed on parties and their legal representatives, and on the court, by virtue of the expansion of the Overriding Objective. Those duties centre on tackling the impediments to a vulnerable person’s participation in proceedings, including the giving of evidence – reflecting the position under the Family Procedure Rules (which have broadly succeeded in achieving a proactive and positive approach to vulnerability in the family courts).

Defining vulnerability: a checklist approach

The CJC rightly considers the defining of vulnerability to be a key question.

What is ‘vulnerability’? There is no consistency across criminal and family procedure, and that is no surprise: it is a fundamentally difficult concept to define, drawing its meaning not from any absolute set of characteristics, but often from context.

The Report considers various options, but recommends what is – in the end – a typically Woolfian way of doing things: a checklist of factors, to be applied by the court, in order to assess vulnerability on a case-by-case basis. First, it is proposed that the Overriding Objective is tweaked:

Dealing with a case justly and at proportionate cost includes, so far as is practicable –

(a) ensuring that the parties are on an equal footing and can fully participate in proceedings;

(f) enforcing compliance with rules, practice directions and orders; and

(g) ensuring that witnesses can give their best evidence.

Second, a new Practice Direction is proposed, which will define vulnerability, and guide the court in how to assess it.

‘Vulnerability’ will be defined functionally (that is, in terms of a person’s ability to do something): Is the person impeded from participating fully in proceedings? Is the quality of their evidence impeded?

To answer those questions, the court will have to assess a person’s ability to do certain things, including understanding the proceedings, putting their views to the court, and attending hearings.

To do that, the court must consider a non-exhaustive list of factors, including the person’s age, maturity, level of literacy, social and cultural background, any physical or mental disorder, and the subject matter of the case. Inevitably, the definition poses as many questions as it answers:

  • How will the court assess these things in the real world?
  • Will medical evidence be routinely required for that assessment? Who will pay for it?
  • To whom will the person be compared? Without some form of comparative exercise, the majority of litigants in person (if not all of them) will be assessed as struggling to ‘put their views to the court’: surely that is too wide a definition. But to anyone familiar with the recent, tortuous trail of appellate cases on comparative ‘vulnerability’ in homelessness law, the idea of applying a comparative functional assessment to everyday judicial case management seems foolhardy.

 

Case management and ground rules

The CJC’s approach to general case management is non-prescriptive: the court should have maximum flexibility to deal with a wide range of vulnerabilities. Necessary directions may include practical measures to ensure participation in the case management process (such as remote hearings); extended periods for compliance with orders; familiarity with The Advocates’ Gateway toolkits; and specifying the facilities that will need to be available in the court building.

In cases involving the evidence of a vulnerable witness, the court will consider whether to set ‘ground rules’ for the giving of that evidence. Ground rules lie at the heart of the procedural protections for vulnerable witnesses in the criminal and family courts: a set of bespoke rules intended to ensure that a particular witness can give their best evidence.

The CJC does not suggest any limits on the ground rules that the court could make. Consideration should be given to the length of time for questioning; following the relevant toolkit from The Advocates’ Gateway; in multi-party cases, directing that later advocates only put additional relevant points; and the timetabling of the trial (for example, giving the witness a clean start).

Experience in the family courts suggests that the following ground rules are likely to be common: prohibitions on closed, tag or multi-clause questions; submission of written questions for approval in advance; use of first names; prescribed breaks; familiarisation visits; live links; and screens.

Many ground rules that are now common in the family courts will require a fundamental shift in the culture of the civil courts: significant limitations will be placed on the way in which a vulnerable witness can be questioned, requiring the advocate to adapt to the witness’s needs – so that the witness can give their best evidence. The family courts have succeeded in achieving that shift; the question is whether the civil courts can do the same.

Intermediaries

Intermediaries remain a rarity in the civil courts, although they regularly facilitate communication with vulnerable persons in criminal and family cases.

Intermediaries are often appointed where a witness has a learning disability, or mental health difficulties.

An intermediary may assist the court in assessing a person’s communication needs (usually at a ground rules hearing); and they can provide active support to a party or witness, to help them understand what is happening and assist them to communicate with the court, including while giving their evidence.

The CJC identifies a clear need for the recruitment of intermediaries, and recommends that the Ministry of Justice and HMCTS should jointly review the availability and use of intermediaries in the civil courts as a matter of urgency.

What does the ‘new normal’ mean for vulnerable parties?

The necessity of maintaining a functioning justice system during the COVID-19 crisis has meant all of us (including the judiciary and HMCTS) embracing remote hearings. That could be viewed as a huge step forward, in the apparently gentle amble of the HMCTS reform programme.

In its Report, the CJC was critical of HMCTS for not sufficiently addressing the needs of vulnerable court users in the development of its reform programme. Unsurprisingly, the Report’s authors did not anticipate that, little more than a month after its publication, we would all find ourselves grappling with both the challenge and the opportunity of a new remote world. The challenge is to ensure a working court system, fair for all its users including the vulnerable, at a time of national crisis – without the benefit of system-wide planning, training or any impact assessment.

The opportunity is to learn lessons, right now, and to use those lessons to shape the future. Experience is being gained every day: of the benefits, the limitations and the human consequences (good and bad) of remote justice.

Already, it is clear that a wealth of information will be available: the Nuffield Family Law Observatory has reported on its consultation, which identified concerns about the fair participation of vulnerable parties; and the CJC has published its Rapid Review report on the broad effects of the lockdown.

More consultations and research will follow, and that evidence (as well as the impact assessments proposed by the CJC) can be used to ensure that vulnerable parties and witnesses are integrated fully and fairly into the digital Court Service of the future.

Will our new-found proficiency with remote hearings mean that other fundamentals are left behind? Some court buildings desperately need their facilities and equipment brought up to a basic, functioning standard. Will HMCTS identify and provide the necessary, real-world facilities that give vulnerable parties and witnesses fair access to justice, such as separate waiting areas, screens and properly functioning video links?

If not now, then when?

The CJC’s recommendations are welcome, and perhaps they make even more sense now – post-COVID-19 – than they did before.

If the recommendations are implemented, they will bring a particular focus to case management in the civil courts, allowing for a flexible approach to safeguard the needs of vulnerable parties and witnesses. But incorporating the consideration of vulnerability into judicial case management is not enough; greater awareness and an improved focus on vulnerability, by all those working in the system, is needed.

We are all acutely aware of the importance of access to justice; those who have become vulnerable as a result of the pandemic, and those who were already vulnerable, are at a particular risk of becoming lost in the system. A change of culture is not just beneficial; it is essential.

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Siân Smith

Siân Smith is a barrister at 42 Bedford Row, specialising in family law. She is Chair of the Family Law Bar Association’s Vulnerable Witnesses Working Group.

Iris Ferber

Iris Ferber is a barrister at 42 Bedford Row, specialising in employment and property claims involving parties with disabilities.