REUTERS | David Gray

Proportionality expanded to include vulnerability… but whose pocket will be vulnerable?

Since the COVID-19 lockdown began in March 2020, many a change has been experienced by all and now the development of the Civil Procedure Rules (CPR) is no different. The definition of proportionality in CPR 44.3(5) is to be expanded to take into account the involvement of vulnerable parties and witnesses, following a detailed report of matters by the Civil Justice Council (CJC).

Following the consultation, HHJ Barry Cotter QC, chair of the CJC Working Group that produced the report, said:

“The public consultation undertaken by the CJC highlighted very real concerns about the current level of assistance for vulnerable people in civil proceedings, and also the lack of data…”

So we ask: how will matters change for us all? First, one must look at the definition currently given to “vulnerability”. The Oxford English Dictionary states:

“Vulnerability: The quality or state of being vulnerable, in various senses”

It is the application of “various senses” which will indeed be open to interpretation and application on a case by case basis. What can be established however is that claimants or witnesses, who are deemed to be vulnerable, therefore resulting in any additional work being generated or expenses incurred, shall now be deemed to be a proportionate incurred cost or expense. As with any civil rule such as this, its application to a case will be subjective, but it is a positive step to ensure that clients and witnesses who fall within this category are afforded full access to any assistance required.

One element which may be of benefit to the claimant in costs is when certain elements of costs are now incurred as per the Court of Appeal’s decision from 2019 in West v Stockport NHS Foundation Trust, where it held that costs “which are fixed and unavoidable, or which have an irreducible minimum, without which the litigation could not have been progressed”, should not be taken into account for the purposes of proportionality. But what will this mean in practice? Will it be proportionate to obtain further expert evidence for evidential certainty on the vulnerability of a claimant or witness? Will that time be proportionate where such a document takes longer to explain? Such examples will run through the heart of the claims process and will be a catalyst in many a thought-provoking debate amongst practitioners.

A further question arises in relation to CPR 45 and the application of fixed costs and whether any disbursements incurred for such a client or witness would now be regarded as a disbursement “that has arisen due to a particular feature of the dispute.” Surely the introduction of a new category to proportionality will have a far wider implication, with CPR 45 being an area that will no doubt be impacted where additional work or expense has been incurred due to a specific measure being undertaken.

This new inclusion and application of the principles determined in West and also the impact upon CPR 45 will, in my opinion, certainly keep many a practitioner busy with the interpretation of this new rule. We will certainly see numerous challenges and many a decision from the courts. One hopes, however, that the CJC have taken this into account when deciding what guidance shall feature alongside the new inclusion to CPR 44.3(5).

Claimant practitioners are likely to view the change of the rule as a positive development, but the question remains as to what it will truly mean in practice. For defendant practitioners, there is likely to be concern that they will become vulnerable to further proportionality rulings in favour of the claimant. No doubt all practitioners will continue to monitor the developments of this inclusion to the proportionality rule and its application.

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