Witness Statements under PD 57AC – The court’s approach to non-compliance
Filton Pavier
Our series focused on witness statements considers the challenges encountered by practitioners across a range of different dispute resolution specialties while preparing witness evidence. In this blog Anna Metadjer explores measures that can be put in place to allow witnesses suffering from capacity issues to give evidence.
Witness evidence is key to the outcome of many civil cases. While difficulties can arise in obtaining evidence when it appears that a witness in the proceedings may be suffering from mental capacity issues, this does not necessarily mean that they cannot provide evidence at all.
It is usual in Court of Protection proceedings for a person lacking capacity to be empowered to provide their views to the extent that they can, and in many cases it will be possible to do the same for witnesses providing evidence in civil disputes.
Practice Direction 1A of the Civil Procedure rules, which relates to vulnerable parties or witnesses, confirms that to deal with cases justly, the court should ensure, so far as practicable, that the parties are on an equal footing and witnesses can give their best evidence. The court, with the assistance of the parties, should try to identify the vulnerability of the parties or witnesses at the earliest possible stage, including whether the quality of the evidence given is likely to be reduced by reason of vulnerability, so it can be considered whether directions need to be made.
The Civil Justice Council recently consulted on the procedure for determining capacity in civil proceedings. While the results of the consultation have not been released at the time of writing, the consultation working group considered that the court will need to adopt a more inquisitorial role to ensure that any potential lack of capacity is promptly addressed.
Where a witness is found to be vulnerable due to capacity issues, the court can put measures in place to assist them in giving evidence such as:
- admitting pre-recorded video evidence;
- questioning a party or witness through an intermediary; or
- using a device or other aid to help a party or witness communicate.
It would be for the court to determine whether a measure proposed would cause prejudice to either party, but assuming it does not, and would assist in the best evidence being obtained, presumably any proportionate measure would be considered.
Before making any directions, CPR Practice Direction 1A, which was introduced in 2021, confirms that the court must consider the views expressed by a vulnerable witness about participating in the proceedings or giving evidence. This is similar to the approach to decisions made concerning an incapacitated person under the Mental Capacity Act 2005, which confirms that so far as reasonably practicable, the person must be permitted and encouraged to participate, as fully as possible, in any act done for him and any decision affecting him.
In the case of Milroy -v- British Telecommunications PLC [2015] EWHC 532 (QB), the court confirmed that the claimant’s mild reduction in memory functioning was a matter to which regard must be had when assessing the reliability of his evidence. Despite his absence from the witness box and the inability to cross-examine him on certain matters, the judge considered that he was in a reasonable position to assess the witness evidence, and the claim was successful.
Capacity is a nuanced issue, and it may be that the capacity of the witness fluctuates. They may lack the capacity to do some things or make certain decisions, but could still be able to provide an account of matters relevant to proceedings. Ultimately, it will be for the court to decide what weight to give to witness evidence, factoring in all relevant matters. These will include the impact of any capacity issues the witness may have, or the measures put in place to assist them in giving evidence, on the quality of the evidence provided.
Further information
If you have any questions or concerns about the topics raised in this blog, please contact Anna Metadjer.
About the author
Anna Metadjer has extensive litigation experience, acting for both domestic and international clients on complex, multi-jurisdictional, trust, estate and Court of Protection disputes.
We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.
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