Authors:John Horan
Last updated:2023-09-18
Historic inclusion of the rights of disabled and vulnerable people in the Civil Procedure Rules
Marc Bloomfield
Description: Practice and procedure
Although not reported or announced to the media, the Civil Procedure (Amendment) Rules 2021 SI No 117 were made in January 2021, laid before parliament the following month and come into force on 6 April 2021. These, in part, amend the Civil Procedure Rules 1998 (CPR) to add the rights of vulnerable and disable people to the overriding objectives. Judges are now required to make sure that parties and witnesses ‘can fully participate in proceedings’ and ‘can give their best evidence’ (CPR 1.1(2)(a) as amended). The amended rule directs the reader to a new Practice Direction (PD) 1A determining ‘how the court is to give effect to the overriding objective in relation to vulnerable parties or witnesses’ (CPR 1.6 as amended).
The PD, which is due to come in to force at the same time, states that:
1. 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.
2. Vulnerability of a party or witness may impede participation and also diminish the quality of evidence. The court should take all proportionate measures to address these issues in every case.
3. 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.
4. Factors which may cause vulnerability in a party or witness include (but are not limited to) –
i.Age, immaturity or lack of understanding;
ii.Communication or language difficulties (including literacy);
iii.Physical disability or impairment, or health condition;
iv.Mental health condition or significant impairment of any aspect of their intelligence or social functioning (including learning difficulties);
v.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);
vi.Their relationship with a party or witness (examples being sexual assault, domestic abuse or intimidation (actual or perceived));
vii.Social, domestic or cultural circumstances.
5. 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.
6. 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.
8. 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 witness is to give evidence, to determine what directions are necessary in relation to the nature and extent of that evidence, the conduct of the advocates and/or the parties in respect of the evidence of that person, and/or any necessary support to be put in place for that person.
This is an historic amendment, with disabled people at last being at the heart of courts’ thinking in respect of all orders. Disabled people make up 15 per cent of the population of the UK. I will consider the amendments and their relation to the March 2020 revision of the Equal Treatment Bench Book and the UN Convention on the Rights of Persons with Disabilities in the April 2021 issue of Legal Action.