‘Vulnerable parties’ in catastrophic injury claims: costs and case management after 6th April 2021
March 25, 2021
In February 2020, the Civil Justice Council published a report on ‘Vulnerable Witnesses and Parties within Civil Proceedings’ which contains wide ranging recommendations towards improving access to justice for vulnerable parties and witnesses in the civil courts. The report focuses its attention on individuals whose ability to participate in proceedings, or to give their best evidence, may be impaired because of ‘a mental or physical disability/disorder, an impairment of intellectual or social functioning, fear or distress, or any other reason rendering them vulnerable’.
Solicitors and barristers with clients who have suffered catastrophic injuries will recognise that this description of ‘vulnerability’ will capture to the majority of claimants who have suffered severe brain injuries (as well physical injuries with life-changing consequences).
The report’s first recommendation was that the Civil Procedure Rule Committee should consider:
- Amending the overriding objective to reflect the need to ensure that all parties can fully participate in proceedings
- Amending the definition of ‘proportionality’ in CPR r.44.3(5) to include additional work and expense generated by the fact of vulnerability of parties witnesses.
The Rule Committee responded almost exactly one year later with the Civil Procedure (Amendment) Rules 2021 (published on 1st February 2021). From 6th April 2021, the overriding objective is amended with the goal of making clear “that dealing with a case justly includes ensuring that the parties can participate fully, and that parties and witnesses can give their best evidence.”
The amendment adds a new Practice Direction 1A which is available here:
Paragraph 4 of the practice direction expands upon the ‘definition’ of vulnerability suggested by the Civil Justice Council with a non-exhaustive list that includes:
- 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 (an example being having witnessed a traumatic event relating to the case);
- Their relationship with a party or witness (examples being sexual assault, domestic abuse or intimidation (actual or perceived));
- Social, domestic or cultural circumstances.
The references to physical disabilities and mental impairments are retained from the CJC description of ‘vulnerable’ and expanded upon to include within the scope of ‘vulnerability’ parties who ‘lack understanding’ or have been impacted by the (traumatic) subject matter of the case. The practice direction requires the court (with the assistance of the parties) to identify vulnerability at the earliest possible stage and make the necessary case management directions to maximise the participation in proceedings of the vulnerable party.
It will be key, therefore, for the legal teams representing seriously injured claimants to ensure that the particular vulnerabilities of their clients are identified ahead of a CCMC so that measures can be incorporated into the directions timetable to address the particular problems they are likely to face as the litigation progresses.
Another significant change for solicitors, barristers and costs lawyers is that the definition of ‘proportionality’ is amended to recognise that dealing with vulnerable claimants requires more work (and therefore costs more money). The old CPR r.44.3(5) said that costs would be considered proportionate if they bore a reasonable relationship to:
- the sums in issue in the proceedings;
- the value of any non-monetary relief in issue in the proceedings;
- the complexity of the litigation;
- any additional work generated by the conduct of the paying party; and
- any wider factors involved in the proceedings, such as reputation or public importance.
In cases of catastrophic injury, claimant lawyers could often plead reliance on factors (a) and (c) (and sometimes (d)!) to justify claimed or budgeted costs since the claimant may be seeking millions of pounds in damages and be relying on expert evidence from a range of disciplines on a myriad of issues. The amendment will add a new relevant consideration as (f) so that proportionate now also means costs which bear a reasonable relationship to “any additional work undertaken or expense incurred due to the vulnerability of a party or any witness.”
It will be imperative for those responsible for drawing costs budgets to set out explicitly why the catastrophically injured claimant is vulnerable and how that impacts on the additional work needed to maximise their participation in their claim. Additional work is likely to be needed across the budget – it should be itemised and highlighted so that the costs managing judge (with the assistance of the claimant lawyer) can properly give effect to the amended overriding objective and ensure that budgeted costs reflect the reality of representing a seriously injured (and consequently vulnerable) claimant for what is likely to be years and years of complex litigation.
These are welcome changes, not only in seeking to address systemic barriers to full participation in litigation of seriously injured claimants, but also in recognising that the costs of pursuing a claim on behalf of a catastrophically injured claimant will very likely be significant – necessarily so. The process of pursuing a claim for a severely injured claimant will often stretch over a number of years, and the vulnerabilities of such a claimant will usually necessitate careful attention from the claimant’s legal team throughout. The goal for claimant lawyers going forwards will be to accurately estimate the amount of ‘additional work’ likely to be needed based on past experience (and experience of the dealing with the particular claimant) and then to clearly identify the additional amount of costs claimed in any Precedent H.
Chris Gutteridge is a member of the Personal Injury team at Exchange Chambers.