Solicitors “went too far” after client was given vulnerability order

Ritchie: Solicitors’ actions were unfair to defendant

Solicitors were wrong to allow a client to see cross-examination questions that had been drafted by the other side under a vulnerable witness order, a High Court judge has held.

The ruling of Mr Justice Ritchie is one of the first to consider practice direction 1A, which was added to the Civil Procedure Rules in April 2021 to ensure the participation of vulnerable parties or witnesses.

In GKE v Gunning [2023] EWHC 332 (KB), the claimant asserted that the defendant counsellor/wellbeing coach caused her psychiatric injuries by abusing his position of trust in making sexual comments during and between three sessions in April 2018.

Ritchie J recounted that another judge had granted the claimant a vulnerable witness order, based on psychiatric evidence. This required the defendant to serve and file a list of cross-examination questions, to which the claimant could object at the start of the trial.

The claimant was also permitted to attend the trial by video link and the defendant – who was representing himself – was barred from cross-examining her directly, with the trial judge given the task of asking the 86 questions on the list.

Ritchie J said: “I found out halfway through re-examination of the claimant that not only had the claimant’s lawyers seen the questions but the claimant herself had been shown the questions before the trial and so had (potentially) been through them with her lawyers.”

He observed that PD 1A’s purpose was to enable vulnerable parties and witnesses to participate to the fullest extent in proceedings and was based on a Civil Justice Council (CJC) report.

“In paragraph 203 of that report, the CJC considered but dismissed the idea of providing a service of trained lawyers to ask the litigant in person’s questions of the victim of alleged sex abuse and suggested, if necessary, the questioning could be undertaken by the judge at trial.

“I have not found anywhere in the CJC report the suggestion that the claimant, who was not a child and did not have learning difficulties, should herself be permitted to read the written cross-examination questions in advance of cross-examination taking place.

“Whilst I make no criticism of the claimant’s lawyers for interpreting the wording of the vulnerable witness order made in this case as permitting them to take instructions on the written questions, it is my view that giving the questions to the claimant in advance created was not fair to the defendant and created an unlevel playing field and degraded her evidence.”

Ritchie J said the defendant “expressed his astonishment and disbelief that this could have occurred and submitted in the strongest terms that it was unfair”.

He went on: “I have sympathy with that submission. As a result, I have taken great care to approach the claimant’s cross examination answers with the unlevel playing field in mind.”

The judge concluded that the claimant had “fragile and vulnerable mental health conditions” at the time of the consultations and that the defendant breached his duty of care to her in one of the sessions.

This was negligent but Ritchie J said he did not find “intentionality or malevolence”.

He awarded £10,000 for pain, suffering and loss of amenity and a further £2,000 for other losses.

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