PI Brief Update

Special measures in the civil courts: IMX v Bicknell [2024] EWHC 2183 (KB) - Philip Matthews, Temple Garden Chambers

15/10/24. Whilst it is not unusual for special measures to be imposed in criminal and family law trials involving vulnerable parties, they are a less common feature in the civil courts. IMX v Bicknell [2024] EWHC 2183 (KB), however, provides a rare example of their use in the personal injury context. The case is illustrative of the practical issues thrown up by special measures, particularly where one of the parties is unrepresented.

Background

The Claimant sought compensation for sexual abuse perpetrated against by her the Defendant, her then stepfather, when she was a young child. Summary judgment was entered against the Defendant in respect of assaults for which he had already received criminal convictions. An assessment of damages hearing was subsequently listed. The Claimant was represented by counsel; the Defendant appeared as a litigant-in-person.

Special Measures

Th Claimant applied for special measures. These were granted by the trial judge, Deputy Master Marzec. The Claimant was found to be a ‘vulnerable person’ pursuant to CPR PD 1A by virtue of the following factors: the impact upon her of the subject matter of the hearing; the relationships between her and the Defendant, who was her abuser; and her psychological vulnerability. The latter point was supported by a report from an expert psychiatrist.

The measures imposed were that the Claimant could give her evidence from a remote location, namely her counsel's chambers; that the Defendant would submit his questions for cross-examination of the Claimant to the judge two weeks before the trial; and that such questions as were approved would be verbalised by the judge, who would, in effect conduct the cross-examination, and not put by the defendant himself. In addition, the Defendant was not permitted to address the Claimant directly, and the parties would not see each other during the hearing.

The imperative to protect Claimant, however, was to be balanced against the need to ensure the integrity of the proceedings. To this end, the Claimant was not shown any questions prior to cross-exanimation, and it was ordered that when the Claimant gave evidence, she should have with her only her solicitor (who was to remain on camera).

Practical Challenges

Deputy Master Marzec noted that “the [special] measures presented a number of unforeseen practical challenges,” listing them as follows (§17-19): -

1. Firstly, there were presentational and format issues with the Defendant’s list of questions.
2. Secondly, the wording of the Defendant’s questions was not appropriate given that the judge, and not the Defendant, would be verbalising the,. For example, they were drafted in first-person and included expression of regret.
3. Thirdly, the list of questions was very long, repetitive and focused on matters which were not directly relevant to the quantum dispute (e.g., the continuing relationship between the parties after the abuse).

Despite these issues, “[the Defendant]did not express any dissatisfaction with the way the hearing had gone, and appeared pleased with what it had elicited and with the fact that, as he put it, the Claimant had given truthful answers”.

IMX will no doubt become key reading for all personal injury practitioners involved in child sexual abuse compensation claims.

Image cc flickr.com/photos/keoni101/6016744959