A silent revolution?
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Marc Bloomfield
John Horan examines some important but underreported changes to the Civil Procedure Rules that will improve disabled and vulnerable people’s experiences in the courts.
On 28 January 2021, the government made a statutory instrument called the Civil Procedure (Amendment) Rules 2021 SI No 117. Among other things, these provisions, which come into force on 6 April 2021, amend the Civil Procedure Rules 1998 (CPR) so as to add the rights of vulnerable and disabled people to the overriding objective (Part 1).
The changes were not announced by the Judicial Press Office, nor were any group of disabled people or those who love them – for example, the Equality and Human Rights Commission or the Law Centres Network – informed that they were coming. This is extraordinary as, for the first time in history, the procedure in any civil forum in the UK courts system must expressly take into account the rights of vulnerable and disabled people, identifying their rights as part of the ‘overriding objective’ of every case.
The amendments action the report entitled Vulnerable witnesses and parties within civil proceedings: current position and recommendations for change (Civil Justice Council, February 2020) (the Report). The central requirement is that (from 6 April 2021) judges, in each and every case before them and at each and every stage, make sure that parties can ‘participate fully in proceedings’ and can ‘give their best evidence’ (CPR 1.1(2)(a) as amended). The amended rule directs to a practice direction (PD), CPR PD 1A,1See 127th update – practice direction amendments, Courts and Tribunals Judiciary, 1 February 2021, Sch 1. to determine ‘how the court is to give effect to the overriding objective in relation to vulnerable parties or witnesses’ (new CPR 1.6).
In addition, rules that pertain to costs now say that, exercising their cost discretion, judges are to consider ‘any additional work undertaken or expense incurred due to the vulnerability of a party or any witness’ (new CPR 44.3(5)(f)).
Under CPR PD 1A para 1, judges are reminded that:
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.
It is pointed out (in para 2) that:
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.
It is clear and expressly true in all cases and at all stages of cases. The PD goes on to say (at para 4):
Factors which may cause vulnerability in a party or witness include (but are not limited to) –
iAge, immaturity or lack of understanding;
iiCommunication or language difficulties (including literacy);
iiiPhysical disability or impairment, or health condition;
ivMental health condition or significant impairment of any aspect of their intelligence or social functioning (including learning difficulties);
vThe 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);
viTheir relationship with a party or witness (examples being sexual assault, domestic abuse or intimidation (actual or perceived));
viiSocial, domestic or cultural circumstances.
Looked at as a whole, the amendments cover both physical and mental disability, age and immaturity, parties or witnesses who have difficulties with English (whether orally or in written form, whatever the reason), parties or witnesses who have difficulties with other people involved with the case (be it sexual assault, domestic abuse or other intimidation), and the broad heading of social, domestic or cultural circumstances. HHJ Cotter QC, who compiled the Report, while noting with surprise that no data on the number of vulnerable witnesses or parties appearing before the civil courts existed, pointed out that 25 per cent of individual claimants who answered a civil court user survey indicated that they considered themselves to have a physical or mental condition (para 17). The number of parties and witnesses who are affected by this change in the rules will undoubtedly be enormous.
At CPR PD 1A para 5, judges are told:
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.
The widest scope of interactions is expressly rehearsed for the court to consider, including instructions to representatives at any stage. It is clear that the PD requires that judges now look at aspects of the proceedings and identify vulnerability at the earliest possible stage.
CPR PD 1A para 7 says:
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.
At para 8, it continues:
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.
For the first time, a nod is given, albeit implicitly, to the Judicial College’s Equal treatment bench book (ETBB), a new edition of which was published in February 2021, and which, in past years, has been notorious for not having been read by a goodly number of judges themselves. ‘Ground rules’, of course, refers to the ground rules hearings that the ETBB says should be done in the vast majority of cases involving children and vulnerable adults (see in particular chapter 2). Judges are told (in CPR PD 1A para 5, as mentioned above) that they should try to identify vulnerability at the earliest possible stage and then consider whether or not a party or witness is adversely affected by their vulnerability in doing their part in the case.
Implications for disabled and other vulnerable adults
There is no doubt that every single judge in every jurisdiction of the CPR will have to consider the needs of vulnerable people at each stage, as part of the overriding objective.
There is no doubt that the impact on all aspects of civil litigation will be huge. In particular, there is no doubt that every single judge in every jurisdiction of the CPR will have to consider the needs of vulnerable people – which includes physically and mentally disabled people and also victims of sexual and domestic abuse – at each stage in each case, as part of the overriding objective.
The wording in the addition to CPR 44.3(5) could not be wider, requiring judges to consider the cost implications of ‘any’ additional work undertaken or expense incurred due to the vulnerability of the party/witness. This presumably includes extra time in conference, extraordinary travel expenses if the physical disability means that the instructions must be taken in the party’s home, etc – the list is endless and will depend on the particular circumstances of each case.
It is clear that the ETBB is a powerful guidance tool, teaching judges how to do the nuts and bolts of the ground rules hearing (albeit that ‘ground rules hearing’ is not a term which the CPR adopt). The need for early ground rules hearings is obvious and I dealt with what disabled claimants and their lawyers should do in a previous article (see May 2018 Legal Action 11). Not surprisingly, nothing has materially changed in terms of what disabled people and their lawyers must do, although the legal framework within which that sits is much clearer due to the new amendments.
The factors that judges are to consider regarding disabled or other vulnerable people with respect to:
a request by the court that they do some action; and
their ability to respond to or comply with such a request, at all or in a timely manner (see CPR PD 1A para 5),
also have profound implications for any sanction that the court may be asked to consider for non-compliance. The court will classically impose sanctions that lead to serious consequences – and which the party may apply to the court for relief from. CPR Part 3 provides for the court’s general powers of case management; under CPR 3.4(2)(c), the court can strike out a claim or defence, including for failure to comply with a rule, PD or court order. From 6 April, judges are required, in every case, to consider the disabled individual’s ability to comply with such an order. This will surely have an effect on a judge’s discretion not to do anything to ‘punish’ for any default. It will also affect the discretion to grant relief from sanctions for disabled people. This is in line with the UN Convention on the Rights of Persons with Disabilities (UNCRPD), which requires the UK government to ‘guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds’ (article 5(2)) and to ‘ensure effective access to justice for persons with disabilities on an equal basis with others’ (article 13(1)).
This is new law. It must be understood as the judiciary trying, at long last, to actually bring about the changes that the UNCRPD has stipulated. This has consequences not only politically, but also on the interpretation of the new rules themselves: in my view, they must be interpreted purposively, with the purpose being, in part, to comply with the UNCRPD. That was the reason that HHJ Cotter QC gave for rule amendments2See para 88 of the Report. and is obviously what the drafter intended when they chose the words that they did.
The amendments are not perfect:
They leave out of the equation any individuals involved in a case who are not parties or witnesses. These people – including disabled barristers, solicitors, Law Centre workers, court clerks and judges – also have rights that qualify for protection under UNCPRD article 13. The scandalously low numbers of disabled solicitors, barristers and judges reflect poorly on the UK’s human rights record. Something must be done about their plight.
The international guidance over actioning article 13 that the UN Committee on the Rights of Persons with Disabilities put out last year (International principles and guidelines on access to justice for persons with disabilities, August 2020) is still to be complied with in many key areas (see my article at February 2021 Legal Action 13). There are still areas where effective justice requires disabled people to have access to lawyers; the current legal aid scheme is woefully inadequate in terms of meeting this need. This must be addressed, even if that is a decision to be made here by parliament.
As with one of my complaints outlined in my article on the Presidential guidance: vulnerable parties and witnesses in employment tribunal proceedings (Judge Brian Doyle, president of the employment tribunals (England and Wales), 22 April 2020 – see June 2020 Legal Action 11), again, there was no consultation whatsoever about this change in the law with disabled people and their relevant organisations – none. This is clearly a breach of UNCRPD article 4(3) and is yet to be addressed.
However, the procedural amendments offer protection for disabled people who want to bring any kind of claim in whatever jurisdiction and about any subject matter. It is a truly historic event – although the authors of the new rules apparently don’t think so.
 
1     See 127th update – practice direction amendments, Courts and Tribunals Judiciary, 1 February 2021, Sch 1. »
2     See para 88 of the Report»

About the author(s)

Description: John Horan - author
John Horan is a barrister at Cloisters.