Participation of vulnerable parties in civil litigation: split trials and stays (AXX v. Zajac)

January 12, 2023

By Chris Gutteridge


AXX (A protected party by his litigation friend XRE) v. Zajac [2022] EWHC 2463 is the first reported case in the High Court (KBD) concerning the ‘new’ CPR Practice Direction 1A which requires the court to take all proportionate measures to address any impediment to a party’s participation in proceedings caused by their ‘vulnerability’. Master McCloud granted an application made on behalf of the Claimant (who was a protected party due to a psychotic condition which had arisen after his accident) for a trial of causation as a preliminary issue on the basis that, if successful at that stage, the Claimant could seek interim funding for treatment to address his psychiatric symptoms and allow him to participate fully in the subsequent quantum trial. The Master also refused an application from the Defendant for an ‘unless’ order (whereby the claim would be stayed unless the Claimant cooperated with examinations to be performed by the Defendant’s instructed medical experts) because of concerns about the Claimant’s capacity to consent to examination. This decision illustrates the important role that PD1A has in shaping case management decisions to protect the interests of parties with vulnerabilities.


In 2016, the Claimant was knocked off his bicycle by a motorcar being driven by the Defendant. He was wearing a helmet but suffered a blow to the head. The Claimant’s case is that the impact to his head caused a traumatic brain injury which precipitated the development of a psychotic disorder. His psychiatric symptoms resulted in him losing his job as a firefighter and eventually led to him being detained under s.3 of the Mental Health Act 1983. He now resides in supported accommodation but remains so unwell that he refuses to take anti-psychotic medication, refuses to engage with his litigation friend, refuses to engage fully with the medical experts instructed on his behalf and has refused to be examined at all by the Defendant’s medical experts.

The Defendant denies that the accident caused any brain injury and denies that the Claimant’s psychosis was caused by the accident.

When the matter was listed for a CCMC, an application was made for directions towards a trial on causation (of a brain injury and of the psychiatric symptoms) as a preliminary issue. This was because the Claimant’s medical experts had said they were unable to give a long-term prognosis before the Claimant had undergone a period of rehabilitation and the Claimant’s care expert had said he was unable to give a long-term forecast of likely necessary support without a prognosis from the medical experts. As such, attempting to quantify the value of the Claimant’s claim (if he succeeded on causation of injury) would be problematic.

Because of the Defendant’s full denial on causation “there is no likelihood of an interim payment” (para.13) to enable the Claimant to fund the necessary rehabilitation in the short-term. The Claimant’s proposal was, therefore, that success at a trial on causation would enable him to secure an interim payment and fund a package of rehabilitation so as to be able to enable a meaningful analysis of the case on quantum. Defeat at a causation trial would, of course, nullify the need for quantum evidence.

The Defendant resisted the Claimant’s application on the familiar grounds that a split trial would draw out proceedings, add to cost, and result in the same expert witnesses appearing at two separate trials.


Master McCloud agreed that the PD1A provisions on vulnerability were engaged as a result of the Claimant’s “mental health condition” (PD1A.1(3)(d)) which presented an impediment to his participation in the proceedings. The Master went on to consider the Claimant’s application in light of PD1A.5(c):

“When considering whether a factor may adversely affect the ability of a party…to participate in proceedings and/or give evidence, the court should consider their ability to…put their evidence before the court”

Importantly, the Master adopted a “purposive” approach (para.34) to interpretation of PD1A.5 and agreed that PD1A.5(c) “is not limited to a party’s personal evidence in a formal sense (witness statement, affidavit or oral evidence at court) but that it should be read as also meaning putting his experts’ evidence before the court”.

On that basis, the Master decided that to enable causation to be resolved would stand a real prospect of enabling the Claimant to place his evidence before the court, by making it more likely he could engage with the experts at quantum stage and by also enabling prognosis to be clearer if and when he is able to be medicated…That in turn was affected by the potential to obtain an interim payment once liability for substantial damages is established (if it is) at a split trial” (para.27).

Accordingly, the Master granted the Claimant’s application and ordered a split trial. The Master also rejected the Defendant’s application for an automatic stay of proceedings in the event that the Claimant continued to refuse to be examined by its medical experts. There was no evidence before the Court about the Claimant’s capacity to consent to medical examination and the Master observed that “Sanctions such as a stay or debarring order could only fairly be imposed on an informed basis in the light of such an assessment [of whether the Claimant had capacity to consent] and of course weighing up fairness to both sides” (para.32).


Personal injury lawyers with clients who have suffered catastrophic injuries should be aware that the definition of ‘vulnerability’ in PD1A.4 will capture the majority of claimants who have suffered severe brain injuries (as well those with significant physical or psychiatric injuries). The practice direction recognises that “Factors which may cause vulnerability in a party” include (amongst other things) a lack of understanding, communication difficulties, physical disabilities, mental health conditions and significant impairments of intelligence or social functioning. That means that in every claim arising from a life-changing injury, practitioners should be considering PD1A and its potential application to case management issues.

PD1A.6 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.

This decision is a reminder to judges performing a case management function that they must ensure a vulnerable party’s Article 6 right to a fair trial is protected by all proportionate means – and that PD1A sets out the process which the court should adopt in every case so as to ascertain whether a person is vulnerable, how it may affect their role and position in the claim, and what steps to take to assist that person to participate.

Chris Gutteridge (counsel for the Claimant in AXX, instructed by David Roberts of Thompsons Solicitors). A version of this article was originally published by LexisPSL.