The Civil Justice Council (CJC) has called for an amendment of the definition of proportionality in CPR 44.3(5) to include additional work and expense generated by the involvement of vulnerable parties and witnesses.
It also argued for judges to have discretion to increase payments in fixed, scale and capped costs regimes where vulnerability has required a specific measure to be taken, causing additional work or expense.
The recommendations form part of a detailed report from the CJC of the measures needed to improve protection for vulnerable witnesses in the civil courts. It was commissioned by the Ministry of Justice.
The key recommendations included:
- Rule changes to further ensure that all civil judges, parties and advocates consider vulnerability of people involved in civil proceedings;
- The Judicial College should enhance the training of civil judges to detect and assist vulnerable witnesses, including by making this training mandatory. HM Courts and Tribunals Services (HMCTS) should do the same for all staff who handle civil cases. Professional bodies are also asked to consider how their members can be trained to work with vulnerable parties and witnesses; and
- HMCTS should look at the availability, use and funding of intermediaries in civil cases;
The CJC report said several responses to the consultation that informed its findings highlighted that this increased focus on identifying and addressing the vulnerability of parties/witnesses would likely increase the cost of the litigation.
It was not necessary to change any rules for litigants in person, as to the extent that non-fixed costs were recoverable, an assessment takes place which could “incorporate consideration of the costs consequences of any measure taken as a result of vulnerability”.
But the report highlighted various provisions around fixed, scale and capped that were not sufficiently flexible to allow the court to take vulnerability into account.
“The council believes that the Ministry of Justice should consider whether there should be a provision within every fixed or scale costs regime for a discretion to consider a claim for an amount of costs which is greater than the fixed recoverable costs to cater for the consequences of specific, identified measures which have been necessary to cater for vulnerability,” it said.
The “overarching issue” was whether proportionality considerations should play any part when dealing with measures necessary to assist vulnerable parties/witnesses.
The CJC noted that in last year’s West ruling, the Court of Appeal said certain elements of costs “which are fixed and unavoidable, or which have an irreducible minimum, without which the litigation could not have been progressed”, should not be taken into account for the purposes of proportionality.
The report said that while the approach of the court in West would “arguably” allow the additional costs associated with vulnerability to be considered under CPR r.44.4(1), “this leaves uncertainty and prevents adequate costs management”.
It continued: “Subject to the views of the Ministry of Justice… the council believes that the Civil Procedure Rule Committee should consider amending the definition of proportionality within CPR r.44.3(5) to include reference to costs referable to steps necessarily taken in light of vulnerability. This would allow the court to manage costs within proportionality constraints, whether by costs management, in those cases to which this discipline applies, or by retrospective assessment in the remainder of cases.
“This would mean that the court retained control of the determination of the suitable measure, by selecting that which is the reasonable and proportionate one (which may not be the adjustment chosen by the party, nor at the cost suggested by the party). It also means that parties and their representatives will need to address any vulnerability at an early stage as the court is unlikely to permit variations to a budget under CPR PD 3E 7.6, if the alleged significant development is something that the party/representative ought to know about at the time of directions/costs management.
“This will assist in efficient case management, effective use of court time and provide early transparency of the costs to the parties to enable them to make informed decisions about pursuing/resisting a claim. The reverse side of this flexibility within the costs management regime is that if particular vulnerabilities only come to light late in the day, these may be addressed by applications to vary.”
His Honour Judge Barry Cotter QC, chair of the CJC working group that produced the report, said: “The public consultation undertaken by the CJC highlighted very real concerns about the current level of assistance for vulnerable people in civil proceedings, and also the lack of data… The council hopes that those organisations to whom the recommendations are directed will consider them as a matter of urgency.”