CXC v David Clarke & Anor

Under Practice Direction 1A, the court must identify any vulnerability likely to restrict a party’s full participation or a witness’s ability to give best evidence. It must then take proportionate protective measures. A direction, including appointment of an intermediary, is permissible only where it is necessary; a measure that would merely be helpful is insufficient.

Permission is not required to obtain an intermediary’s report. The report should ordinarily be available before the court decides whether intermediary assistance or other directions are necessary. Any appointment must have a defined role and duration. A whole-trial appointment will be exceptionally rare.

The claimant, who suffered a severe brain injury in a 2007 road traffic accident, sought to set aside a pre-action settlement on the ground that she lacked litigation capacity between 2007 and 2009. Her present capacity was of limited assistance because of a later accident in 2016.

Pending determination of whether she had a relevant vulnerability for the purposes of the proceedings, she applied for permission to obtain an intermediary’s report and for HMCTS to pay the report’s cost. She also sought an extension of time for serving witness evidence. The issues were whether permission was needed to obtain the report, how Practice Direction 1A operated, and how the applications should be managed.

1. Protective-measures framework. The court must first identify whether a party or witness is vulnerable and whether that vulnerability is likely to restrict full participation or the ability to give best evidence. If so, Practice Direction 1A is engaged. The court must take proportionate measures, doing no more than is necessary to address the relevant vulnerability.
2. Practice Direction 1A distinguishes between general provisions and directions. The court should first consider whether provisions short of a direction are sufficient. Directions, including special measures or intermediary assistance, may be made only where necessary. Measures that would merely be helpful do not satisfy that threshold.
3. Intermediaries. An intermediary is independent of the parties and owes duties to the court. The role is not limited to assisting a witness who gives evidence. The court may direct intermediary support to enable a vulnerable party to participate fully, but appointment remains a judicial decision and party agreement or an intermediary’s recommendation is not determinative.
4. There is no requirement in the Civil Procedure Rules or Practice Direction 1A to obtain permission before instructing an intermediary or obtaining a report. Permission is required before an intermediary is used as a protective measure. A report is ordinarily needed before the court can decide whether intermediary directions are necessary.
5. Any appointment must specify its purpose, role and period of engagement, each being no more than necessary. A whole-trial appointment is exceptionally rare. Where an intermediary may assist at trial, arrangements should generally be considered at a hearing with the intermediary present.
6. The claimant’s application for permission was dismissed because permission was not required and the question of relevant vulnerability remained premature and unresolved. The application to extend time for witness evidence was adjourned, to be renewed after the vulnerability issue had been addressed. The court did not determine HMCTS’s liability for the intermediary’s costs; any payment issue should ordinarily proceed through HMCTS’s established process.

First-instance decision in the High Court (King’s Bench Division). The judgment itself does not state any prior decision under appeal.