The Dekagram: 28th October 2024

This week the High Court gave further guidance as to the measures to be adopted when taking evidence from vulnerable witnesses, drawing a clear distinction between the approach taken by the criminal, family and civil courts; a useful reminder that the court systems, although interconnected, have distinct procedural rules which are designed to achieve justice in different ways. We’ve said it before and no doubt will again – in some respects everyone involved in litigation, particularly personal injury litigation, is vulnerable to some degree or another, given the pressures involved. And that’s just the barristers.

Case Summary: Titan Wealth Holdings & Others v Okunola [2024] EWHC 2586 (KB)

The application of special measures in civil proceedings and the importance of not conflating the approach in family and criminal courts

The Claimants (four in total) had brought a claim for breach of confidence, breach of contract and harassment against the Defendant, a former employee. Judgment was given on several preliminary matters in October 2024 before trial, and for the purposes of this article namely in respect of limitation of cross-examination and special measures. The background to the harassment claim concerned correspondence sent by the Defendant to the Third and Fourth Claimants, who were the human resources director and the compliance director, which contained grossly offensive and demeaning content.  The Claimants, by way of an application, sought an order that (1) pursuant to CPR 32.1(3), the Defendant was prohibited from cross-examining the Third and Fourth Claimants on an irrelevant issue, namely, the truth of the assertions made in the correspondence said to constitute harassment against them, and (2) pursuant to CPR PD 1A, paragraph 10, they be permitted to give evidence from behind a screen i.e. special measures.

The court has a power under CPR 32.1(3) to limit cross-examination. This is effectively part of a wider power under CPR 32.1(1)(a) to control the issues on which the court requires evidence. The Court determined that the Claimants were right to contend that the truth or otherwise of the factual assertions made by the Defendant in the correspondence said to constitute harassment was not relevant to the determination of the claim. Firstly, because the messages in question fall into the category of conduct which could never be justified with reference to the content of the message sought to be conveyed, such that proof of falsity is not required, applying Law Society v Kordowski [2011] EWHC 3185 QB at [133].  Secondly, the messages were offensive and demeaning even if reasonable people were unlikely to be believe them as per Pattinson v Winsor [2024] EWHC 230 KB at [24]. The Judge considered that cross-examination on this issue would not legitimately assist the Defendant in defending the claim of harassment.

In respect of the special measures application, under CPR PD1A, the court must consider whether, in the furtherance of the overriding objective, it would be appropriate to give special measures directions so as to seek to ensure the full participation of vulnerable parties and/or witnesses in proceedings before it.

“Vulnerability” is defined under CPR PD1A, paragraph 3, as “a characteristic which may adversely affect participation in proceedings or the giving of evidence”. Paragraph 4 sets out a non-exhaustive list of factors which may cause such vulnerability in a party or a witness:-

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.

The Judge noted that this is the appropriate approach to apply to civil litigation in the High Court, as opposed to the approach taken in Criminal cases which the Defendant referred to in her written submissions.

The Court determined that the Third and Fourth Claimants were vulnerable by virtue of the impact on them of the subject-matter of the correspondence received from the Defendant and because of their relationship with the Defendant, which had caused them stress and anxiety. This engaged paras 4(e) and (f) of CPR PD 1A, set out above, and the Court considered that special measures were required to ensure the Claimants were able to fully participate in the proceedings.

Special measures to protect witnesses is a well-known feature in the family and criminal courts but perhaps they are less often used in the civil courts. In civil claims for damages for sexual abuse and/or harassment, or secondary victim claims, special measures may well come into play.

About the Author

Called in 2018, Francesca Kolar accepts instructions over all of chambers’ practice areas, including most particularly personal injury and clinical negligence. Prior to pupillage she spent two years teaching debating to students in inner-London secondary and primary schools, for the social mobility charity Debate Mate.