The litigation process can be daunting at the best of times for any client. For a person with any type of non-physical vulnerability however the process can be extremely challenging for both client and lawyer unless the correct safeguards are implemented.
Vulnerable clients are known as “Protected Parties” (PP). These can either be minors i.e. under the age of 18 or alternatively, a vulnerable adult. Both these types of clients would have to proceed with a case with the assistance of a “Litigation Friend” i.e. an adult who must act in the best interests of the PP, make important decisions in the claim and who can conduct the proceedings on behalf of the PP.
Quite often a litigation friend can be a parent or other family member or a close friend. This person must have no interests adverse to those of the PP.
A vulnerable adult PP in the litigation process is a person over the age of 18 who does not have the mental capacity to conduct his/her own litigation.
It is vital that such PPs are assisted by an appropriate litigation friend who can provide full instructions to his/her representatives at all times in order for the claim to be effectively prepared.
Quite often the use of the litigation friend for a PP will effectively assist in the preparation of the case but what happens if the case has to go to Trial and the PP is required to give evidence?
In the case of a vulnerable adult especially, the litigation friend may not have been present at the time of the incident so it may be crucial, especially in a defended case for the PP to be able to attempt to give some evidence of whatever happened to him/her to give rise to the claim.
This may be near on impossible for a vulnerable client when his/her recollection of events may be muddled, they may suffer with poor memory or are easily confused. He/she may not understand what a Judge or Barrister at Trial is asking them ( especially in cross examination)and they may not be able to follow the proceedings due to poor concentration.
All of the above could be fatal to a successful outcome without the necessary support in place.
I recently acted for a vulnerable adult with a severe psychiatric condition who was injured in an assault in a school playground by another pupil. Liability was denied throughout the claim and the case was listed for a 4 day trial at which my client had to preferably give some evidence as to when, where and how the assault took place.
I arranged for a report to be obtained by what is known as a “Court/ Registered Intermediary” whose job it is to assist the person giving the evidence and the Court. This person has no duty to either Party in the proceedings. The Intermediary stands with the PP in the witness box to ensure that all questions are asked appropriately e.g. no leading questions or complex language etc. and to explain any unclear responses from the PP to the court.
Although court-appointed intermediaries are fairly common in criminal proceedings, they are not so much in civil proceedings. In fact my case was the first ever contested County Court case where a Registered Intermediary assisted at Trial in the UK.
I am delighted to report that my case was successful despite my client really struggling in the witness box even with the assistance of the Intermediary. He received a substantial award which now needs to be approved by the court. This approval process affords the vulnerable client i.e. the Protected Party another layer of protection. If the award exceeds £50,000 in any case, an application must be made to the Court of Protection for administration of the compensation on behalf of the Protected Party.
As such, to ensure we achieve the best results for our clients, Ralli Solicitors are always prepared to go the extra mile and arrange for our clients to have the requisite support at all times.