Rules should be updated, judicial training improved and court rooms rejigged to cater for parties with mental health conditions and other vulnerabilities in civil proceedings.
That is the current thinking of the Civil Justice Council, which this week published a series of recommendations for fixing the long-acknowledged disparity between the way parties are treated in criminal and civil cases.
Since 1999 the Civil Procedure Rules have allowed courts to adopt many of the existing protections given to vulnerable parties and witnesses in the criminal and family courts.
But the CJC acknowledged that the civil sector has been criticised as ‘passive’ on the issue for not creating a separate set of rules, with vulnerable people excluded from proceedings because they are not properly catered for.
Concern around the issue is not new: in 2010, research for the Ministry of Justice showed that court users with mental health conditions and learning disabilities felt they were prevented from being able to give evidence. A report at the time made a series of recommendations, but none has been fully implemented.
Commissioned by the MoJ, the Civil Justice Council now suggests amending the CPR to specify that the court and parties must identify a vulnerable person at the earliest possible stage, consider whether whether proceedings will be affected by their condition, and set out ‘ground rules’ before a vulnerable witness can give evidence.
The CJC suggests directions questionnaires be amended to request information as to the potential vulnerability of a party.
Extra training for judges, one of the proposals in 2010, is also recommended in order that they can detect or assess vulnerability, manage cases appropriately and amend the conduct of hearings. HMCTS staff should also be given this training ‘as a matter of urgency’.
The recommendations are part of a consultation which invites on these and any other potential changes. It closes on 11 October.