What is a vulnerable witness?
The discussion as to who will be witnesses to give evidence in support of your claim or defence should take place at the very early stages of proceedings. You may even find that this consideration affects your inclination to issue a claim.
It is important that any vulnerabilities of a potential witness are taken into consideration. The court will expect this of you. The Civil Procedure Rules (“CPR”) set out the considerations that need to be had when it comes to vulnerable witnesses.
CPR Practice Direction 1A, para 3 sets out that a person will be considered as ‘vulnerable’ when a personal or situational factor (permanent or temporary) may adversely affect their participation in proceedings or the giving of evidence.
Paragraph 4 of the same Practice Direction provides a non-exhaustive list of factors which may cause vulnerability in an witness, all of which should be considered:
- Age, immaturity, or lack of understanding
- Communication or language difficulties (including literacy)
- Physical disability or impairment, or health condition
- Mental health condition or significant impairment of any aspect of their intelligence or social functioning (including learning difficulties)
- The impact on them of the subject matter of, or facts relevant to, the case
- Their relationship with a party or witness
- Social, domestic or cultural circumstances
Paragraph 5 of PD 1A outlines that the court should reflect upon the following factors when considering whether one of the above factors may adversely affect the ability of the witness to participate:
- Understand the proceedings and their role in them;
- Express themselves throughout the proceedings;
- Put their evidence before the court;
- Respond to or comply with any request of the court, or so do in a timely manner;
- Instruct their representative (if any) before, during and after the hearing; and
- Attend any hearing (whether in person or remotely via video link).
The court will take proportionate measures to address issues of vulnerability and ensure that the quality of evidence is upheld and to further the overriding objective.
Of course, special preparations and specific ground rules may be necessary when considering the attendance of vulnerable witnesses at trial. These arrangements should be considered and organised at the earliest opportunity. In particular, the court may allow an assessment of the vulnerable individual’s communication abilities to take place (either by the court or if a represented individual, by their adviser). The result of such an assessment should result in advice on the following:
- The types of questions that are likely to get the best response
- The types of questions that should not be asked
- How long the person will need to answer a question
- When the person may need a break.
If you have a query about a vulnerable witness or need advice about a potential claim please do not hesitate to contact our commercial litigation team here.