A FIRST REAL LOOK AT THE PROVISIONS OF CPR PD1A IN PROCEEDINGS INVOLVING PROTECTED PARTIES

Introduction

AXX v Zajac [2022] EWHC 2463 (KB) is a High Court case that dealt with the application of the provisions of PD 1A, which is a new creation of the Civil Procedure Rules (“CPR”) directed at vulnerable litigants. The case was decided in 2022 and appears to be the first of its kind after the new provision came into force in April 2021, but its novelty is the fair hearing context and the way in which it afforded the judge a somewhat rare opportunity to provide what she described as “a worked example” other judges dealing with matters relating to “vulnerability” and the new CPR provisions. 

The vulnerability provisions came into play in the case on the question of whether there should be a split trial to first deal with issues of causation, leaving quantum to be determined at a later date. The notion of a split trial in civil litigation is nothing new as there were indeed times in the past, pre-CPR, when it was a regular practice for judges to conduct split liability and quantum trials with issues of quantum being set to one side whilst liability was determined. Post-CPR regime, appropriate cases are still dealt with in this matter, however, for reasons associated with costs and perceived duplication split trials are not utilised as often as they once were.

The Facts

This case arose out of a road traffic accident in 2016 in which the Claimant suffered personal injuries when a vehicle driven by the Defendant ran into him whilst he was riding a bicycle. The Claimant claimed that the accident caused him traumatic brain injury (“TBI”) resulting in him suffering neuropsychiatric symptoms including psychosis, paranoia, and delusions. The Claimant had a pre-existing mental health condition and had at some point in the past been kept in the hospital under the Mental Health Act. The Defendant denied that the accident caused the Claimant’s psychiatric condition or contributed to it. Instead, they took aim at the Claimant’s admission of having had a history of use of cocaine as the cause. The Claimant was unwilling to engage with the medical experts for purposes of medical assessment to determine whether the accident did indeed cause the TBI, and the extent of medication that might be needed. He demonstrated erratic behaviours symptomatic of a mental health patient and refused to take medication. That being the case, the judge had to decide whether there should be a separate trial about the question of the brain injury and what effects it may have had on the Claimant and whether such effects had been caused by the accident, or not.

The issue

There was no dispute between the parties as to whether the Claimant was a vulnerable person, but they disagreed about whether a separate trial was needed, as a result. The peculiarity of the situation let to the Claimant’s lawyers arguing that splitting the trial would provide a realistic option in the circumstances in which the Claimant was not engaging with the proceedings because of his refusal to take medication. Their case was that it was possible to use a split trial process to get the Claimant to change his mind, and that if he took medication that could mean medical experts had a better understanding about whether he would get better as time passes or not and could help him to put his evidence before the court through the experts because he would cooperate if he was less unwell. The Defendant argued otherwise, and so the judge applied new guidance in Practice Direction 1A covering vulnerably persons as a way of resolving the issue. 

The Law

Reference was made to CPR 1.1(2)(a) to the effect that parties must be given a level-playing field to enable them to participate fully in proceedings. The Claimant rationalised his case for split trial on that basis, and referred to CPR 1.6, which makes a cross reference to PD 1A – being the idea of how the court should give effect to the overriding objective in cases involving vulnerable parties or witnesses. By reason of his vulnerability, the Claimant fell within PD 1A.1 (3)(d) which concerns “Mental health condition”, and so provided a basis for the court to consider if the question about split trial might engage the Claimant’s right to a fair hearing under Article 6 of the European Convention for Human Rights (“Convention”). 

When considering whether a factor may adversely affect the ability of a party to participate in proceedings and/or give their best evidence, paragraph 5 of Practice Direction 1A enjoins the court to consider their ability to (a) understand the proceedings and their role in them; (b) express themselves throughout the proceedings; (c) put their evidence before the court; (d) respond to or comply with any request of the court or do so in a timely manner; (e)  instruct their representative/s (if any) before, during and after the hearings; and (f) attend any hearing. 

There appears to be no available precedent because of lack of guidance or authority in the White Book as the judge would observe that it was the first significant point that had to be dealt with in the context of the new CPR provisions. The Judge therefore directed herself to the PD1A.1(5)(a)-(f) impact assessment to determine the question of whether the Claimant had capacity to understand the importance of assisting experts and capacity to appreciate that refusing to do so may adversely affect his case. 

The Decision

In assessing PD1A.1(5)(a)-(f), the judge found that as much as all six of them were either relatively proportionate or not engaged, (c) and (d) were most significant within the argument the parties advanced in relation to the application of a split-trial process. The Judge noted that:

“the Claimant’s submission was that “putting his evidence before the court” is not limited to a party’s personal evidence in a formal sense (witness statement, affidavit or oral evidence at court) but that it should be read as also meaning putting his experts’ evidence before the court in the form of what I shall summarise as being ‘best evidence’, and in that context should, it was said, include as far as possible being put in a position to speak with experts and answer the experts’ questions when medically examined so that the experts can opine on his condition and no doubt summarise or quote his answers and describe his state in the reports”. 

The judge agreed that point (c) should be read on that basis especially because she thought it was consistent with the Claimant’s Convention rights. That being the case, the judge decided that to “put their evidence before the court” in PD1A.1 (5)(c) in my judgment includes doing so indirectly by way of cooperating with and speaking to medical experts for the purpose of expert reports for the Court”. 

Accordingly, the judge ordered that a separate trial should be held under Rule 3.1(2)(i) to determine three issues: (a) whether the road traffic accident on 13th February 2016 involving the Claimant and the Defendant caused any traumatic brain injury to the Claimant; (b) whether any traumatic brain injury caused by the said road traffic accident has caused any post-accident psychiatric symptoms, and the extent of the same; and (c) whether the road traffic accident has otherwise caused Post-Traumatic Stress Disorder and the duration of the same.

The thrust of the matter is that the question of mental capacity is context specific as the judge observed. There were three matters that played out. Firstly, the judge had no evidence that the Claimant (whilst lacking capacity to conduct litigation) was unable to understand (with suitable assistance) the need to speak to the experts. Secondly, the Claimant was found to have consented before to examination by his own experts (by participating in examination). Thirdly, there is evidence that he was able to cope day to day with life tasks such as shopping and feeding himself. 

Analysis

While a split trial may be technically advantageous to on or more of the parties to litigation, especially if that party succeeds on the point(s) being tried, there is no doubt that it can have grave costs consequences for the losing party. Although, the judge did not underplay the costs aspect of the case, she nonetheless felt it was far more significant to engage a process that would assist the proceedings. The judge thought that costs could be mitigated given the prospect that those could be saved if either the claimant substantially failed to establish causation or if the causation issue was resolved in his favour and enabled treatment and clearer prognosis. Either way, the approach either simplifies the quantum process or as often happens, enables proper negotiation over quantum against a more informed prognosis. It was in that context that the judge did not agree with the Defendant that overlapping of witnesses was significant and did not agree the trial would be over involved or complex either, as according to her, “it is quite common for medical causation experts to be engaged in causation trials and common for lay witnesses to give evidence”. 

Conclusion

This case is about the conduct of proceedings involving vulnerable parties in the context of the new CPR PD 1A provisions and there is no question about the fact that there is a lot to consider from the structured approach that the judge adopted in resolving the question of whether or not she should order a split trial. There is always likely to be better scope for a fair hearing if vulnerable litigants are properly engaged and can have experts put forward evidence in support of the case advanced on their behalf. This case provides an example of an instance where taking the course advocated by the Defendant would not have been in furtherance of the overriding objective.