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:
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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