CXC v Clarke & Anor [2024] EWHC 3138 (KB): How to Factor an Intermediary into a Civil Claim

In the recent case of CXC v Clarke & Anor [2024] EWHC 3138 (KB), the High Court have given guidance on how a party should approach instructing an intermediary for a vulnerable party in a civil claim.

The facts

The Claimant, having been involved in a road traffic accident on 16/09/2007, settled her claim on 25/05/2009 pre-issue for a sum of £25,000. The Claimant is seeking an order to set that settlement aside on the basis that she lacked capacity to conduct litigation from 2007. The Claimant suffered a further road traffic accident in 2016, the injuries from which may also affect her capacity in the current litigation. The issue of capacity between 2007-2009 is firmly in dispute between the parties.

The applications

On 24/07/2024, the Claimant made an application for permission to obtain a report from a registered intermediary to advise on how the Claimant would best be able to engage in the proceedings, as well as seeking an order that HMCTS pay the costs of obtaining the report. The Court also faced an application made on 19/09/2024 to extend time for the Claimant to serve her witness evidence. 

What is an intermediary?

HHJ Bird drew assistance from how intermediaries are provided for in the Family and Criminal jurisdictions (Family Proceedings Rules 3A and PD 3AA; Criminal Procedure Rules Part 18 and PD 6). The Civil Procedure Rules take a less proscriptive approach, but the overriding objective requires that full participation in proceedings and ensuring witnesses can give their best evidence is an integral part of dealing with cases justly. CPR PD 1A was introduced in April 2021 to address the issue of vulnerable witnesses directly.

On those bases, HHJ Bird identified that a Court could direct that an intermediary provides support to allow a party to participate fully in the proceedings, even if the party does not give evidence.

In the present case, it was anticipated that an intermediary would assist by undertaking an assessment of the medical evidence and preparing a report to identify the Claimant’s needs and any protective measures required, making recommendations to ensure effective participation in the proceedings, including on any specific communication needs and to support the Claimant at the preliminary hearing assisting in rephrasing questions and making sure the Claimant could follow the proceedings.

Key principles for the use of an intermediary in civil cases

• Steps to be taken by the Court:
  • Identify if there is a relevant vulnerability. Until this is done, the Court cannot decide what protective measures are required. Some cases will be straightforward (examples are set out in PD 1A, paragraph 4, for example, a young child). Less obvious, health-related vulnerabilities need to be established by appropriate evidence (either from Part 35 experts or treating clinicians). 
  • Determine if the relevant vulnerability is likely to restrict full participation in the proceedings.
  • The Court must take all proportionate measures to deal with the relevant vulnerability. This will first require an assessment of whether a protective measure short of direction is enough (‘a provision’). If not, the Court must consider whether it is necessary to make directions to address the relevant vulnerability.
• Before making directions to assist vulnerable persons, the Court must be satisfied that they are necessary. It is not enough that they would be helpful.
• CPR PD1A gives a broad discretion to the Court on the type of special measures that can be ordered when a person with a relevant vulnerability is to give evidence. It provides a non-exhaustive list at paragraph 10 of the following measures:
  • Preventing a party or witness from seeing another party or witness by the use of screens;
  • Allowing to give evidence remotely by video conference;
  • Hearing evidence in private;
  • Dispensing with the wearing of wigs and gowns;
  • Admitting pre-recorded video evidence;
  • Questioning a party or witness through an intermediary; and
  • Using a device or other aid to help a party or witness communicate.
• If an intermediary is to be involved in a civil trial, either to assist a witness or support a party, arrangements should generally be made at a hearing in the presence of the intermediary. Such a hearing would be akin to a “ground rules hearing” in the criminal jurisdiction.
• An intermediary report is not referenced by CPR PD1A but is likely to be a key factor for the Court to consider when deciding what (if any) protective measures are to be made. Guidance for the content of such a report has been published by the Ministry of Justice. It is not an expert report and CPR 35 does not apply.
• The CPR does not require permission to instruct an intermediary to draft a report. However, an intermediary report is required before the Court can consider if directions for the use of an intermediary are necessary. Permission is required to use an intermediary but not to obtain an intermediary’s report.
• The appointment of an intermediary (either to assist a witness give evidence or to assist participation in proceedings) is a matter for the Court. Agreement of the parties does not justify appointment.
• An intermediary should only be appointed if necessary. It will only be necessary if lesser steps (protective measures in the form of directions or provisions) would not be sufficient to address the vulnerability.
• If an intermediary is to be appointed, their role and periods of engagement should be specified and no more than necessary. An order for use of an intermediary for a whole trial would be exceptionally rare.
• The Court will proceed on the basis that the advocates will be familiar with the guidance on handling vulnerable witnesses in the “Advocate’s Gateway” and will prepare and adapt their style accordingly.

Judgment in CXC

In the present case, as there was no requirement for permission to instruct an intermediary to draft a report, the application for permission to instruct an intermediary was dismissed. The application for extending time for the Claimant’s witness evidence was adjourned to be dealt with once the issue of relevant vulnerability had been resolved.

As the application for permission was dismissed, the Court did not need to decide the issue of recovering costs from HMCTS. However, HHJ Bird did note that the issue of payment should ordinarily be left to the usual application process via HMCTS policies.

The Claimant’s asserted vulnerability arose from the brain injury acquired in the 2007 accident. The parties were yet to exchange medical evidence. At the time of the present hearing, the Defendant did not accept the Claimant had a relevant vulnerability. It was too early for the Court to determine the question. Accordingly, the Court identified that the following steps should be taken in the present case:

1. If the Claimant has a relevant vulnerability, an intermediary should be instructed to produce a report;
2. Depending on the content of the report, an application for protective measures should be made in respect of that vulnerability.  This application should rely on the intermediary report and include a draft order;
3. If the intermediary recommends that they attend trial to assist, directions and other measures should be considered at a hearing with the intermediary in attendance.

Comment

The case provides key guidance on how parties should approach the appointment of an intermediary in the civil jurisdiction. It is important that both Claimant and Defendant solicitors are aware of the key stages at which vulnerability should be assessed and special measures applied for witnesses and/or parties in the litigation. In doing so, it will ensure that the rights of vulnerable parties are protected and enjoyed within the civil litigation process.