17 Oct 2019

Question 1. 

Are there issues in relation to vulnerable parties/witnesses in the civil courts which that have not been covered/adequately covered within this preliminary report? If so please give relevant details.

Response:

Whilst the Civil Justice Council (CJC) is commended for undertaking a review of procedure and guidelines surrounding the challenges experienced by all vulnerable witnesses and Parties involved in civil litigation, we consider that the consultation paper dated June 2019 stops short of considering the spectrum of issues which ought to be considered in relation to this subject. 

Womble Bond Dickinson (UK) LLP (WBD) operates an internal policy, by which all employees must comply with regard to issues surrounding vulnerable persons; which incorporates clients and third parties. 

It is our position that the CJC, in effecting positive development following this consultation, must incorporate the following non-exhaustive issues:

Categories of witnesses or parties potentially at risk include:

  • Those who have capacity to make decisions and provide instructions, but by reason of a range of mental and/or physical disabilities need extra support
  • Those who lack mental capacity to make decisions and provide instructions, for whom a range of statutory or other safeguards must be followed
  • Those who are vulnerable to undue influence or duress and who may or may not have mental capacity to make decisions and provide instructions
  • Those for whom all contact and correspondence is with a third party on behalf of the witness or party.

Acting against persons at risk

WBD is engaged in a broad spectrum of legal services, including litigation conducted within the civil courts. We frequently correspond and engage with third parties who may be subject to the vulnerable parties policy. The array of issues to be considered incorporate domestic, financial and criminal matters which, under current law and guidelines, are not adequately addressed in the interest of those subject to the litigation. Such issues include:

  • If we suspect that our opponent in a transaction or litigation is a person at risk, we need to consider how we conduct the matter as well as the reputation of the firm and profession when dealing with the matter
  • We alert our clients to any potential vulnerability, and seek specific instructions on how they wish to proceed. The client may have their own procedures for dealing with persons at risk which we it requires us to follow

Identifying the needs of the witness and/or party:

The optimum result of the consultation process, in our view, would be for the Judiciary to publish statutory procedure and guidance for practitioners, Judges, court staff and litigants with regard to the identification of a vulnerable witness or party and moreover the procedure for assessment of needs thereafter. 

Question 2 (incorporating suggested further considerations requested in Question 3)

Do you believe that there should be further or alternative recommendations? If so please set out relevant details) 

Do you agree with the proposed recommendations set out at section 7? If not why not?

Recommendation 1 - Rule changes

The recommendation, in principle, is agreed however it is our position that the proposed changes to procedure rules should also incorporate guidance on how the courts and parties may identify any party or witness who is vulnerable in addition to published guidance on by what criteria or assessment a vulnerable party may be judged. The philosophy of such rule changes would suit best with a mechanism akin to the 'overriding objective' in dealing with vulnerable persons. 

Recommendation 2 - Directions questionnaires and online access 

The recommendation is agreed. 

Recommendation 3 - Training for civil judges

The recommendation, in principle, is agreed. As detailed below in response to recommendation 6, we would encourage the Judicial College to ensure that all Judges receive such training as a package of compulsory training. Whilst we agree that all Parties to litigation have a responsibility to identify any additional needs required by any party to the proceedings, ultimately, the Judiciary by its very nature must take the lead with respect to responsible and consistent management of the case; including any special measures to be considered on a case by case basis. Moreover, it is crucial that the Judiciary apply consistent criteria in the identification and treatment of vulnerable persons. 

Recommendation 4 - Intermediaries

The recommendation is agreed in principle. We consider however that a balance must be struck between the case specific requirements for funded intermediaries and proportionality on costs and any delays in proceedings suffered due to involvement of intermediaries. 

Guidance from the Courts with regard to use and funding of intermediaries would be welcome, provided that such guidance is clear and with minimal risk of satellite litigation regarding the use and funding of such intermediaries. 

Recommendation 5 - Court protocols and guidance

The recommendation implies that local courts/court centres will have delegated authority to prepare comprehensive operational protocols which should include consideration of the assistance/protections that can be given to vulnerable parties/witnesses given available facilities in both civil and family cases. 

We are of the opinion that whilst there may be necessity for adaptation to the application of the protocols, by local courts and court centres, the substance of the operational protocols ought not be drafted by individual courts and court centres. To do so, would likely lead to regional inconsistency and, in some cases, lesser quality delivery of the protocols in certain localities. 

We must not lose sight of the fact that the purpose of the package of recommendations is to standardise and improve the protocols and service afforded to vulnerable witnesses and parties. We believe this aspiration can only be achieved by a standardised procedure, to be implemented effectively at local level. 

Recommendation 6; Staff training

This recommendation is agreed, with the caveat of consideration of the response provided in Recommendation 5. That is to say, training for HMCTS employees should be approved and standardised at executive level, prior to engaging in a programme of regional training. 

We would go further to suggest that an Officer at each local court and court centre ought to be responsible for monitoring, reporting and contract with the Judiciary in relation to the progressive development of the package of reforms which follow this consultation. To do so would ensure that sufficient measures would be in place for the Judiciary to monitor the effectiveness and potential action areas of the reforms following implementation at local level. 

We acknowledge that the challenges faced in providing access to justice is an issue to be approached by all those involved in litigation. To that end, we are of the opinion that modular training provided by the judiciary ought to be presented to all court users; including Judges, court staff, legal practitioners and advocates. 

Recommendation 7; Compensation orders

The recommendation is agreed.

This response to the Consultation on Vulnerable Witnesses and Parties within Civil Proceedings.