PI Brief Update

Vulnerable Witness Being Provided With Cross-Examination Questions in Advance Created an Unlevel Playing Field - Grace Corby, Temple Garden Chambers

16/03/23. GKE V BRETT NIGEL TRAVERS GUNNING [2023] EWHC 332 (KB).

The Claimant received work/life coaching sessions from the Defendant through her work and then paid privately for counselling/therapy for her mental health and lifestyle issues. The Defendant was a member of the British Association of Counselling and Psychotherapy (BACP) and a qualified counsellor and provided the well-being coaching and later private counselling to the Claimant.

The Claimant brought a claim for personal injuries asserting that the Defendant caused her psychiatric injuries by abusing his position of trust in relation to her during and between coaching/counselling/therapy sessions by making sexual comments and communications and specifically by asking her to undress and to masturbate in front of him in a therapy session or sessions.

The Vulnerable Witness Order

The Claimant successfully applied for a vulnerable witness order a few weeks before trial, relying on psychiatric evidence.The order required the Defendant to serve and file a list of questions in advance of trial and specifically permitted the Claimant to raise any objections to the cross examination questions at the start of the trial. The Claimant was permitted to attend the trial by video link and the Defendant was barred from cross examining the Claimant directly. The trial judge was required to verbalise the Defendant's questions from the list.

The Defendant drafted 86 questions which were sent to the Court and to the Claimant.

Halfway through re-examination of the Claimant, it emerged 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.

The Judge found at paragraph 83:

83. The CPR practice direction 1A is a relatively new addition to the Civil Procedure Rules and springs in all likelihood from the protection of vulnerable witnesses provided in criminal cases. It was introduced on the 6th of April 2021. The purpose, set out in the notes to the Civil Procedure rules, was to enable vulnerable parties and witnesses to participate to the fullest extent in proceedings. The rule change was the product of the Civil Justice Council (CJC) report on vulnerable witnesses. 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.

84. 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. The Defendant was not provided with the cross examination questions from the Claimant's counsel in advance. When this issue arose and during his closing submissions the Defendant expressed his astonishment and disbelief that this could have occurred and submitted in the strongest terms that it was unfair. 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 clear implication of the decision is that even if questions are sent across in advance, they should not be shown to the vulnerable witness in question.

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