CHAPTER ONE – THE EMERGENCE OF VULNERABILITY IN CIVIL JUSTICE
The Growing Recognition of Vulnerability in Civil Justice
The modern civil justice system is founded upon a simple proposition: that all parties should have a fair opportunity to participate in legal proceedings and present their case before an independent tribunal. For generations, however, the concept of fairness was often viewed through a largely procedural lens. If the rules applied equally to all parties, the system was considered fair. If each litigant received notice of proceedings, an opportunity to present evidence and access to judicial determination, the requirements of justice were thought to have been satisfied.
Increasingly, however, courts, policymakers and practitioners have recognised that formal equality does not necessarily produce substantive fairness.
Treating every litigant identically assumes that all participants possess the same ability to understand proceedings, communicate effectively, provide instructions, engage with legal representatives, comply with procedural requirements and give evidence. Experience, however, demonstrates that this assumption is frequently incorrect.
Many litigants face significant barriers to effective participation, arising from disability, illness or cognitive impairment as well as trauma, language difficulties, educational disadvantage, age, poverty, domestic abuse, social exclusion or psychological distress. Such individuals may possess full legal capacity and yet still struggle to participate meaningfully in litigation.
The modern concept of vulnerability attempts to address that reality.
The emergence of vulnerability as a recognised feature of civil procedure represents one of the most significant developments in contemporary civil justice. It reflects a growing understanding that access to justice is concerned with ensuring, not only access to the courtroom, but effective participation once there and for practitioners dealing with the payment and recovery of costs, that development carries profound significance.
Every adjustment designed to facilitate participation has a consequence. Additional conferences, extended attendance times, enhanced communication, support measures, interpreters, specialist evidence and procedural adaptations all require professional time, resources and expenses. Whilst vulnerability is often discussed as a procedural issue, it is equally a costs issue. Indeed, the central proposition of this book is that meaningful participation frequently generates additional work and that additional work inevitably generates additional costs.
Before examining those costs consequences, however, it is necessary to understand how vulnerability emerged as a recognised concept within civil justice and why its development represents far more than a technical amendment to the Civil Procedure Rules.
From Formal Equality to Effective Participation
Historically, civil procedure operated upon assumptions which now appear increasingly outdated.
The traditional model of litigation envisaged a rational litigant who could:
- understand legal advice;
- process written information;
- comply with court directions;
- provide coherent instructions; and
- give evidence in a conventional manner.
Whilst judges possessed broad discretionary powers to manage proceedings, relatively little attention was directed towards the practical ability of parties to participate in the process itself. The focus was on legal rights rather than participation needs.
This approach was perhaps understandable given civil litigation was historically regarded as a dispute resolution mechanism rather than a public service. The court’s role was to determine rights and obligations. Less consideration was given to whether certain individuals faced systemic disadvantages when attempting to engage with the process. Over time, however, that position became increasingly difficult to sustain.
As litigation expanded into areas such as housing, personal injury, clinical negligence, abuse claims, discrimination and social welfare disputes, courts encountered growing numbers of litigants whose difficulties in participating could not easily be managed through the traditional legal framework.
Many possessed full legal capacity but struggled to understand proceedings. Many could instruct solicitors but required far greater support than other clients. Many could give evidence but doing so imposed a substantial psychological burden.
The structure provided limited tools for addressing such difficulties and increasingly, questions began to emerge regarding whether equal treatment was, in fact, producing unequal outcomes.
The Influence of Access to Justice
The increasing awareness of vulnerability cannot be understood without considering the broader evolution of access to justice.
Access to justice is frequently seen as a question of physical or financial access to courts. Whilst those considerations are undoubtedly important, the more recent view of access to justice extends much further.
A litigant who cannot understand proceedings does not have meaningful access to justice merely because they are able to issue a claim. A witness who cannot communicate effectively does not receive a fair hearing simply because they are physically present in court. A party overwhelmed by trauma, anxiety or communication barriers may technically participate in proceedings whilst remaining effectively excluded from meaningful engagement.
True access to justice requires full and effective participation and this principle has increasingly influenced procedural reform. Courts are expected to become more willing to recognise that fairness requires more than identical treatment. It may require reasonable and proportionate adjustments designed to remove barriers that prevent effective participation.
Crucially, such adjustments do not grant advantages and their purpose is not to improve a litigant’s prospects of success. Their purpose is to place vulnerable participants in a position where they can engage with the process on a more equal footing.
And that distinction is fundamental.
Vulnerability is not concerned with favouring one party over another. It is concerned with ensuring that the justice system functions fairly for all participants.
Article 6 and the Right to a Fair Hearing
The modern emphasis upon participation also reflects broader human rights principles. Article 6 of the European Convention on Human Rights guarantees the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal. Whilst Article 6 is often associated with procedural safeguards such as public hearings and judicial independence, its implications are considerably wider.
The concept of a fair hearing necessarily includes the ability to participate effectively. However, a hearing cannot realistically be described as fair if a participant:
- cannot understand the proceedings;
- cannot communicate with legal representatives;
- cannot provide coherent instructions; or
- cannot give evidence effectively because of an unaddressed vulnerability.
European law and legal practice have long recognised that fairness must be assessed in practical rather than purely theoretical terms and this principle has increasingly influenced domestic procedural thinking. The question is no longer merely whether a litigant had an opportunity to participate but whether that opportunity was meaningful and this distinction lies at the heart of modern vulnerability provisions.
The Traditional Exception: Protected Parties
Prior to the emergence of vulnerability as a procedural concept, the principal mechanism for addressing participation difficulties was the law relating to protected parties.
The protected party regime remains vitally important. Under CPR Part 21, individuals who lack capacity to conduct proceedings are afforded special protections, including the appointment of litigation friends and judicial oversight of settlements. However, the protected party framework addresses only a limited category of individuals.
Capacity is essentially a binary concept. A person either possesses litigation capacity or they do not. It is often black or white. In contrast, human vulnerability rarely operates in such straightforward terms. It is almost always grey. Many individuals who experience profound difficulties participating in litigation retain full legal capacity.
- A claimant suffering severe anxiety may understand legal advice perfectly well whilst struggling to engage with the litigation process.
- A victim of domestic abuse may possess full capacity whilst finding the prospect of giving evidence deeply traumatic.
- A claimant with dyslexia may be capable of conducting proceedings whilst requiring significant adjustments to communication methods.
Such individuals fall outside the traditional protected party framework. Yet their participation needs may be significant, substantial and time consuming. The emergence of vulnerability, therefore, attempts to reflect the recognition of this gap.
The Civil Justice Council and the Path to Reform
A major catalyst for reform was the work undertaken by the Civil Justice Council.
By the late 2010s, concerns regarding vulnerable participants had become increasingly difficult to ignore. Practitioners, judges and representative organisations identified significant inconsistencies in the way vulnerability was recognised and accommodated within civil proceedings. The resulting consultation and subsequent recommendations (Vulnerable Witnesses and Parties within Civil Proceedings) represented a turning point.
The Civil Justice Council recognised that the existing framework placed too much responsibility upon vulnerable individuals themselves. Those experiencing difficulties were often expected to identify their own vulnerabilities, understand their procedural significance and seek appropriate assistance. This was unrealistic in that the individuals least able to navigate procedural complexities were often those most affected by vulnerability.
The Civil Justice Council, therefore, advocated for a more proactive approach and its recommendations emphasised:
- earlier identification of vulnerability;
- improved judicial awareness;
- enhanced training;
- proactive case management;
- procedural mechanisms focused upon participation; and
- greater recognition of vulnerability throughout the life of proceedings.
These recommendations marked a significant shift from reactive accommodation to proactive identification and laid the foundations for the modern procedural framework.
The Introduction of CPR 1.6 and Practice Direction 1A
The most visible manifestation of these reforms was the introduction of CPR 1.6 and Practice Direction 1A. These provisions embedded vulnerability within the architecture of civil procedure itself.
CPR 1.6 provides:
“Participation of vulnerable parties or witnesses
1.6
Practice Direction 1A makes provision for how the court is to give effect to the overriding objective in relation to vulnerable parties or witnesses.”
This was not a peripheral change. CPR 1 and the overriding objective sit at the heart of the Civil Procedure Rules and inform judicial discretion, case management decisions and procedural interpretation. By linking vulnerability directly to the overriding objective, the Rules Committee signalled that effective participation is a fundamental component of justice.
Practice Direction 1A recognises two particularly important consequences of vulnerability:
- Vulnerability may impede participation in proceedings.
- Vulnerability may diminish the quality of evidence.
Whilst these concepts are closely connected, they are distinct. A party may understand proceedings yet struggle to provide evidence. Equally, a witness may be capable of giving evidence whilst experiencing significant difficulties engaging with the broader litigation process.
Practice Direction 1A at sections (1) to (3) clearly and helpfully set the scene for both the intentions of, and the spirit behind, the overriding objective insofar as it relates to vulnerability.
“PRACTICE DIRECTION 1A – PARTICIPATION OF VULNERABLE PARTIES OR WITNESSES
Vulnerability
- The overriding objective requires that, in order to deal with a case justly, the court should ensure, so far as practicable, that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence. The parties are required to help the court to further the overriding objective at all stages of civil proceedings.
- Vulnerability of a party or witness may impede participation and also diminish the quality of evidence. The court should take all proportionate measures to address these issues in every case.
- A person should be considered as vulnerable when a factor – which could be personal or situational, permanent or temporary – may adversely affect their participation in proceedings or the giving of evidence.”
Sections (1) to (3) of the Practice Direction, therefore, encourage courts and practitioners to consider vulnerability proactively.
The remaining sections at (4) to (10) attempt to assist courts and practitioners with identifying when vulnerability may be relevant and how proportionate measures designed to facilitate effective participation might be implemented.
“4. Factors which may cause vulnerability in a party or witness include (but are not limited to)—
(a) Age, immaturity or lack of understanding;
(b) Communication or language difficulties (including literacy);
(c) Physical disability or impairment, or health condition;
(d) Mental health condition or significant impairment of any aspect of their intelligence or social functioning (including learning difficulties);
(e) 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);
(f) Their relationship with a party or witness (examples being sexual assault, domestic abuse or intimidation (actual or perceived));
(g) Social, domestic or cultural circumstances.
- When considering whether a factor may adversely affect the ability of a party or witness to participate in proceedings and/or give evidence, the court should consider their ability to—
(a) understand the proceedings and their role in them;
(b) express themselves throughout the proceedings;
(c) put their evidence before the court;
(d) respond to or comply with any request of the court, or do so in a timely manner;
(e) instruct their representative/s (if any) before, during and after the hearing; and
(f) attend any hearing.
- The court, with the assistance of the parties, should try to identify vulnerability of parties or witnesses at the earliest possible stage of proceedings and to consider whether a party’s participation in the proceedings, or the quality of evidence given by a party or witness, is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make directions as a result.
- If the court decides that a party’s or witness’s ability to participate fully and/or give best evidence is likely to be diminished by reason of vulnerability, the court may identify the nature of the vulnerability in an order and may order appropriate provisions to be made to further the overriding objective. This may include concealing the address and/or contact details of either party or a witness for appropriate reasons.
- Subjectto the nature of any vulnerability having been identified and appropriate provisions having been made, the court should consider ordering ground rules before a vulnerable person is to give evidence, to determine what directions are necessary in relation to—
(a) the nature and extent of that evidence;
(b) the conduct of the advocates and/or the parties in respect of the evidence of that person;
(c) whether one or more special measures and/or any other support should be put in place for that person;
(d) any duty or power of the court under any enactment or its inherent jurisdiction to prohibit, limit or modify cross-examination of or by a vulnerable witness or to appoint a legal representative to conduct a cross-examination.
- Before ordering any ground rules, special measures or other support, the court must consider views expressed by a party or witness about participating in the proceedings or giving evidence
Special Measures
- Special measures may include, but are not limited to:
(a) preventing a party or witness from seeing another party or witness by the use of screens;
(b) allowing a party or witness to give evidence remotely by video conference;
(c) hearing a party or witness’s evidence in private;
(d) dispensing with the wearing of wigs and gowns;
(e) admitting pre-recorded video evidence;
(f) questioning a party or witness through an intermediary; and
(g) using a device or other aid to help a party or witness communicate.”
The introduction of CPR 1.6 and PD 1A represents an important philosophical shift in modern civil procedure with the focus moving beyond legal rights and towards practical participation. The issue then is, not simply whether a person can engage with litigation, but how effectively they can do so.
That question underpins much of the discussion that follows.
Chapter Summary
Vulnerability has moved from the margins of civil procedure to become an increasingly important feature of modern civil justice. This development reflects a broader shift from formal equality towards effective participation meaning treating litigants equally does not necessarily mean treating them identically.
The introduction of CPR 1.6 and Practice Direction 1A represents an important stage in that development. The modern procedural framework requires courts to identify vulnerability, consider its effect upon participation and take appropriate steps to enable vulnerable parties and witnesses to participate effectively.
That development provides the foundation for the central issue explored throughout this book. Effective participation frequently requires additional work, time and resources. Those requirements have costs consequences. The chapters that follow examine what those consequences are, how they should be identified and evidenced, and ultimately who should bear their cost.