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Litigation and vulnerable parties: new rules

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A number of changes are being introduced to the Civil Procedure Rules (the procedural code that sets out how the courts should deal with cases) on 6 April 2021 which will be of significance to those who work in field of medical negligence and their clients.

The aim of these changes is to ensure the parties in dispute are on an equal footing when there is a witness identified as “vulnerable” and will have particular relevance to clinical or medical negligence claimants and their legal teams.

The changes make it clear that in order to comply with the overriding objective of the revised Civil Procedure Rules, parties involved in litigation (i.e. the very process of taking legal action) have to be on an equal footing.

This means that if a party involved in the proceedings is identified as “vulnerable” the court should consider appropriate directions to ensure that the vulnerable party’s ability to give evidence or take part in the proceedings is not diminished as a result of their vulnerability.

Crucially for those considered “vulnerable”, if additional costs are incurred in ensuring that they can effectively participate on an equal footing these will now be recoverable.

Definition of “vulnerable” party

A person can be deemed “vulnerable” due to:

  • their age
  • immaturity or lack of understanding
  • difficulties in communication or language (including level of literacy)
  • their physical disability or impairment
  • their mental health condition
  • the impact on them of the subject matter of the case
  • their relationship with another party or witness in the case or their social, domestic or cultural circumstances.

Amy Greaves, principal associate, commenting on the reforms said:

“This is a welcome clarification of the court rules that apply to all medical negligence cases. Clients in these cases are frequently vulnerable due to the injuries they have suffered, and despite the best efforts of their legal team, they often have difficulty in understanding the proceedings and giving evidence. These new rules recognise the additional challenge clients face in medical negligence cases and will be of great benefit to them and those representing them in court.”

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