ust over a week ago, Emma Zeb spoke at the Gatehouse Chambers seminar on brain injuries on the issues of capacity and vulnerability in the civil courts and asked whether we can and should do better in these areas. She touched upon the use of special measures which is something she frequently encounters and manages when sitting as a Recorder in the criminal jurisdiction but hardly ever when doing the day job at the bar in civil litigation and inquest work. The judgment of Deputy Master Marzec in the personal injury claim of IMX v Bicknell [2024] EWHC 2183 KB is a valuable summary of how such special measures were used in a civil claim.
The claim for damages by IMX was against her Stepfather who had sexually abused her as a child. He had been convicted of these offences in the Crown Court. He was a litigant in person in this claim and wanted, as was his right, to question the Claimant. The Claimant applied for special measures and the Master agreed.
The starting point was CPR PD 1A and the identification of the Claimant as a vulnerable person by reason of the impact that giving evidence and the case as a whole would likely have on her as well as the nature of the relationship between her and the Defendant. There was psychological vulnerability identified and the relevance of this to her in the proceedings was set out in a witness statement from Dr Cooling, Consultant Psychiatrist.
The measures granted mirrored some of those suggested in the Equal Treatment Bench Book and the Youth Justice and Criminal Evidence Act 1999 (YJCEA). These included pre-written questions from the Defendant for the judge to review in advance of trial and to be asked by the Judge and permission for the Claimant to give her evidence by video away from court by live link. The Claimant would not see the questions in advance and she was only permitted to have her solicitor in the live link location with her, who was to remain on screen. The Defendant was not permitted to address the Claimant directly throughout the proceedings.
Although these seemed sensible and workable measures to safeguard the Claimant, they hit some issues and the resolution or not of those is something we may all learn from:
- The use of expert evidence to support the deployment of special measures.
- An application for the same before final hearing.
- The marshalling of written questions before trial was difficult given that the Defendant provided them in PDF format and not word which made the drafting of further versions more complex. More direction in this regard would have assisted.
- The questions were long, repetitive and lacked focus and required considerable work to be reduced down to relevant questions on the key issues.
- There needed then to be management of any follow up questions from the Defendant after initial questions had been asked and answered. This was managed effectively it seems but some forethought as to this arising is necessary.
- All of the above issues around questions were ultimately for the Judge but it helps to raise at an earlier stage just how much work may be needed before the trial can start and conclude.
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