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Vulnerable vs incapacitous: Vulnerable parties and witnesses - supporting and protecting clients in litigation

Posted on 10 November 2021

The Mishcon Academy Digital Sessions.

Conversations on the legal topics affecting businesses and individuals today.


Antonia Felix 
Hello and welcome to the Mishcon Academy Digital Sessions Podcast. I’m Antonia Felix, a Legal Director in the Family Department at Mishcon de Reya and I’m joined by my colleague, Mariel Stringer-Fehlow, an Associate in the Private Wealth Disputes Team.

This is the second podcast in our series focussing on vulnerable clients and mental capacity. In this episode, we’re focusing on vulnerable parties and witnesses. What do we mean by vulnerable?  What happens if a vulnerable person is a party to litigation? And how are vulnerable parties and witnesses supported during litigation and what can the system do better?

Mariel Stringer-Fehlow
So, moving into the Family Court and who is vulnerable? Before I start talking about who is vulnerable in the Court, I would say that as family solicitors, when we have a client who we believe is vulnerable, whether or not there’ll be litigation, we put measures in place to protect them as our client and then obviously if there’s litigation, how the Court view vulnerable clients is not specifically defined, but it can include those with a learning difficulty, a person suffering from mental ill-health or a person with physical disability which impacts on their ability to communicate effectively. This also includes those parties who don’t speak English as a first language or someone who has suffered domestic abuse. 

So Practice Direction 3 of the Family Procedure Rules sets out the factors the Court has to consider when looking at vulnerability and it is very broad.  This is really because it can be drastically different for each case and each person and Practice Direction 3 is being reconsidered so that it falls in line with the Domestic Abuse Act 2021. 

The Family Procedure Rule states that the Court must deal with cases justly, having regard to any welfare issues involved and I think the important thing for family practitioners is to very early on, recognise and identify when there may be a vulnerable party in litigation so that the Court can be notified and adjustments can be made so that all parties receive a fair hearing and feel that their being supported.

Children are always considered as vulnerable because of their age and guidance in case law governs when a child should attend Court or give evidence in proceedings and if so, how they’ll be supported. There has been a huge increase in number of litigants-in-person in private family proceedings and because of that, even more support is required by the Court and that has been difficult actually, because there is just not enough staff at Court and there is a lot of pressure on the system.  But this is an issue that is being addressed because of the numbers increasing.

Antonia Felix
That’s really interesting, so is everyone with a disability 'automatically' labelled as vulnerable?

Mariel Stringer-Fehlow
No, they won’t be and it’s case-by-case and also some people don’t want to be regarded as vulnerable, so you have to be very careful how you deal with that and someone who might look like they aren’t vulnerable actually could be lacking in confidence and may require assistance and some clients we find for example, in Children Act cases, if they are a parent and they’ve got a history of mental illness or anything else that might crop up, well, their first fear is they might have their child taken away from them if they just simply honest about their history, so it is very key to kind of get an understanding of the history and how to deal with it, so that people aren’t embarrassed or ashamed of their vulnerabilities.

Antonia Felix 
What happens in family proceedings if there is a vulnerable party?

Mariel Stringer-Fehlow
So, the Court will appoint an Intermediary, who do a detailed assessment of what’s required on behalf of the Court and they look at other expert reports such as medical assessments.  The report makes recommendations to the Court for the special measures to be used during the hearing and also advise how the Judge and the legal teams should communicate with the individual to ensure that the vulnerable person is able to give the best evidence to the Family Court that they can and obviously on a practical level, as well as family lawyers, we support our clients in addition to how the Court do.

For example, some clients obviously find Court quite overwhelming and there is a loud tannoy that goes off all day introducing other cases, so we sometimes sit in café’s round the corner from the Court.

We’ve drawn diagrams for clients so they know where they are going to be sitting, we’ve done long lists of what to expect and who talks.  We’ve helped them have witness training so they know how to act in a Court environment and there’s also other things available, say if a client is dyslexic, there’s tools available where the text can be put in such a way that they find it easier to read.

I’ve also had a client who has dyscalculia, so she can’t read numbers in number form, so we had to make sure they were always in word form and we had to notify the Court of that.  I’ve also had clients with therapists, either on the phone or up the road in a café just waiting in case they were needed, even if they weren’t, just to provide that extra level of support and the other thing that I tend to do is try to pre-book a room at Court, because then you can sit in that room and come and go during the day rather than being in the public waiting area, which is, you know, not confidential and actually puts pressure on vulnerable clients and it’s just not appropriate at all.  And for lawyers there’s also a toolkit by the Advocates Gateway Service which has recently been updated, which is very helpful and the Court also with their special measures may put some of these things in place, like looking in to the timing and management of breaks, helping with how written information is provided to the Court and from the clients and the legal teams.

Screens are used a lot in cases where there’s been domestic abuse and often they’re given the option of obviously turning their camera off to make them feel safer. And another step which if there’s alleged abuse and there is a litigant-in-person, there is obviously a difficulty with a litigant-in-person being cross examined and so the Judge requires the questions to be given to him or her a week in advance and then the Judge will ask the questions on behalf of the litigant-in-person. Which is obviously good because it protects that person, but actually makes the Judge the questioner and the arbiter of facts so that’s going to have to something that’s looked into which it is, at the moment and the Court are looking into directing that an Advocate be appointed to do the cross examination.

So the Court will look, very broadly at what is required and there’s obviously always going to have to be improvements but it is definitely getting better.

Antonia Felix
Yeah that sounds incredibly practical as well, which, which is just not the case in the Civil Court.  I think it’s fair to say that we are light years behind the Family Courts and the Criminal Courts who have had to deal with these issues for, well probably, we’ve all had to the deal with them for the same amount of time, but at least they’ve been a lot more alive to them.  So, the Civil Court, there is a real difference in the sort of sophistication, I suppose, of what guidance there is available. In fact, we do complain a bit about the difference and the slightly slow approach there has been but in the last year, there has been huge progress from our perspective.

The Civil Justice Council issued a report last February, which came up with a number of recommendations to facilitate the reform of the Civil Courts and their approach to vulnerable parties and witnesses and these led to an amendment to the overriding objective in the Civil Procedure Rules, which those who aren’t legally qualified, it’s kind of like the guiding principal really of the Court system and sets out in very high level terms what we should all be focussing on which is about proportionality and just administration of justice and being fair and cooperation. But the difference now is that it has been amended to reflect that this requires a focus on parties being enabled to participate fully with witnesses being able to give their best evidence, which is all very much geared towards engaging with issues around vulnerability and as you’ve said Antonia, there are so many ways that you can help parties to actually engage properly regardless of their type of vulnerability or perhaps disability that has not been a priority for the Civil Courts before now.

Antonia Felix
Which is quite surprising really.

Mariel Stringer-Fehlow
Well it is 2021 I mean, yes. It’s definitely been very slow, but at least there has been some progress with this amendment. So the amendments just to the overriding objective, it’s also reflected in a lot more detail in a new Practice Direction, '1A' which sets out in again, still quite high level terms but at least in some more detail the factors that should be taken into account, the variety of ways in which a party or a witness could be considered to be vulnerable, which do seem to be broadly consistent with the Family Courts approach as well.  But the key shift I think, is that it puts the onus on the Court and the parties to consider at an early stage, the earliest possible stage really, how best to facilitate someone’s participation which, as I said, we haven’t had that guidance before, it very much used to be the case that you could raise it as an issue with the Court and it was totally down to whichever Judge or Master was hearing a matter to put into practice what you were asking of them and that was quite often the case where they didn’t have the resources to actually do that.  So this is really useful guidance, it’s probably a bit late and I hope that in years to come we will see a much more practical reality, such as you’ve just outlined in the Family Courts with these measures and the tools that you’ve mentioned but that’s the biggest progress that we’ve made in years.

Antonia Felix
So it feels like there is common ground between us but also there is a difference between vulnerable parties and not having the mental capacity to litigate.

Mariel Stringer-Fehlow
Yeah, I think that’s true. The vulnerable parties as you’ve just described, can be all manner of vulnerabilities whereas just because you are considered vulnerable, does not mean that you do not have capacity of any kind and especially capacity to litigate is specific.  As I know was talked about earlier in the series of podcasts, capacity is a specific test, based on the Mental Capacity Act with case law there to nuance and assist and capacity to litigate is again a specific sort of sub-set of that test.  So just because someone is vulnerable, does not mean that they do not have mental capacity.  Picking up on a point, I think made in the first podcast, we as solicitors, always have to ensure that our clients have capacity to instruct us.  So that’s for legal work in general and when it comes to litigation this means the client has to have capacity to litigate so it can be very specific.  So with all of these decisions, the level of capacity required, will be determined by the complexity of the litigation itself.  As I mentioned, the Mental Capacity Act test applies here where assisted by the common law. So someone could have capacity to litigate a simple dispute but not a complex one and whilst they could have subject matter capacity so they can make specific decisions during the course of the litigation, they need to be able to make decisions for the entirety of the litigation in order to have capacity to litigate.

Antonia Felix
So, what are the consequences of if we, as solicitors, are informed that our client has capacity issues?

Mariel Stringer-Fehlow
Well it’s very difficult for us.  We effectively have to stop taking instructions until the issue has been bottomed out.  So the priority at that stage would then be to obtain the client’s consent for medical evidence to be obtained as to their capacity.  The consent can be quite awkward; it’s a difficult conversation to have with anyone to discuss whether or not they have mental capacity.  I think the best way that we can approach it is to say well, if the report comes back and confirms that you do have capacity, it’s always helpful to have that kind of medical evidence.  If it comes back and reveals there are some issues, then we need to know that in order to protect you and act in your best interests and also, as we’ll come on to, that evidence is needed for proceedings.  So we would really be pushing quickly to get a medical report and it’s really important for that report that the expert you instruct has incredibly clear instructions as to the test that they need to apply.  As we’ve discussed and I know the previous podcast went in to capacity is quite a broad spectrum and a lot of experts are experts in testamentary capacity or a different kind of mental capacity.  Whereas the test here is capacity to litigate, which means you need to be also explaining, in simple terms, but enough that the expert understands what the dispute is actually about. So can the client make the decision that they need to make in the context of this specific dispute.  So it is quite specific, it does require careful instructions, which I think is something we’ve definitely learned over the years.

Antonia Felix
We often find in our litigation that our client will say that the other party to litigation is, their word, ‘nuts’ or ‘you shouldn’t believe anything they say’ and there’s obviously then confusion between them thinking that but with actually that persons capacity to litigate so there’s a bit of advice that often needs to be given there.  But if there’s litigation already proceeding and then you think that your client’s lost capacity to litigate, what do you do then?

Mariel Stringer-Fehlow
Yep, well, it does happen, it’s thankfully quite rare.  But if someone has started litigation and then loses their capacity to litigate, they will need a Litigation Friend appointed pretty quickly. Effectively once someone lacks capacity to continue to conduct proceedings, none of the parties to those proceedings can take a further step without permission of the Court and the Court is not going to give their permission until the protected party, which is what we call the person who’s lost capacity, has a Litigation Friend.  So it really brings everything to a standstill until the Litigation Friend is in place, or at least until the medical evidence is obtained, ruling out the need for one.

Antonia Felix
And what is the test for capacity to litigate?

Mariel Stringer-Fehlow
As mentioned it is really virtually the same as a test for any other transaction.  Fundamentally it comes down to looking at the Mental Capacity Act.  The person has to be capable of understanding information relevant to the litigation.  They have to be capable of retaining the information, evaluating it and communicating a decision and naturally that’s sometimes a lot harder depending on how complicated the litigation is and the decision is.  There is a lot of case law on this that sort of sets out key issues and factors for the Court to be aware of, for the parties to be aware of.  There is a presumption that someone of adult age has the mental capacity to manage their affairs and you know in the scenario you’ve mentioned of the other side alleging that someone has lost capacity however they put it, the burden is on the party alleging that the other side does not have capacity to prove it which is quite difficult where you require consent to get the medical report but it does happen.  So the test I sort of mentioned is really issue specific.  It depends on the complexity of what decision needs to be made and I think it’s important to note that just because someone doesn’t have capacity in respect of a particular transaction, so say it’s accepted that they don’t have capacity to make financial investment decisions, it does not mean they do not have capacity to conduct this litigation so it is really carefully considered and the Court is not quick to decide someone does not have capacity to litigate.  It is your right to conduct litigation as an adult in England and Wales so they are very careful about taking that away.

Antonia Felix 
So what do parties have to be able to understand to have capacity to litigate?

Mariel Stringer-Fehlow
It’s a really good question.  We are not saying that people have to be lawyers you know, and I am sure there are client’s that we advise that do not fully understand the legal aspects of everything we say, that is our job to assist them so they don’t have to understand all the details of the law.  They have to be able to understand with a proper explanation from their legal advisors or from experts the matters on which their consent or decision is necessary in the course of the proceedings.  So that’s really the crux of it and that test applies to the proceedings as a whole so not just to a particular step.

Antonia Felix 
And I know that some clients think that because they’ve got a Power of Attorney in place that that is a way of addressing this but that’s not always the case is it?

Mariel Stringer-Fehlow

No that’s right unfortunately not and we do see this often and often of course by the time the Power of Attorney is actually in use it means that the donor of that Power has lost capacity so it means that you can’t go back and change the terms of that Power of Attorney, it’s too late to do that.  So it is important for people to be aware of the difference between a Power of Attorney and a Litigation Friend.  A Power of Attorney the biggest issue is that you cannot delegate actions of a personal nature by a Power of Attorney so the case law to date sort of sets out in detail that something like, for instance, filing an Affidavit verifying a list of documents, so one of the cases on this subject the Affidavit was sworn by the Defendant’s wife to whom he had granted a Power of Attorney but it was held that a party cannot do by an Attorney some lack the competency to which arises by virtue of a duty of a personal nature.  So I think the key bit to remember in that context is that an Affidavit and especially an Affidavit in context of disclosure requires a personal statement of truth.  You cannot delegate that by way of an Attorney.  So when we are looking at Lasting Powers of Attorney which is the sort of current form of Powers of Attorney, they used to be called Enduring but now you’ve got two types; you’ve Health and Welfare LPA’s and Property and Affairs LPA’s.  So an Attorney acting under an LPA or a Deputy who has generally been appointed by the Court has no automatic right to act as a Litigation Friend which is again really important for people to be aware of.  If there is nothing expressly written in the LPA that prevents the Attorney from acting as the donor’s Litigation Friend, they can in principle apply to be appointed as such.  But just because you have an LPA does not mean you know you suddenly get these, these rights to act as a Litigation Friend.  Appointment of anyone as a Litigation Friend can be done by Order of the Court or by following the usual procedure outside of the Court rules.  But I think the take away really about the Powers of Attorney is that if you have one in place or you sort of have written one and executed it, you need to be carefully reviewing it to see what powers it actually gives and whether it does say anything about conducting litigation.

Antonia Felix 
So do you need to go to Court to get a Litigation Friend appointed?

Mariel Stringer-Fehlow
Not necessarily.  There are certain circumstances where you do and there is a very specific procedure outline in Civil Procedural Rule 21.  So generally where a party to the proceedings other than the protected party, so the person, who is alleged to have lost capacity, seeks to have a Litigation Friend appointed, they need to apply to Court or if an existing Litigation Friend is to be replaced.  So the application is sort of very procedural, it’s needs to be supported by evidence, it has to be filed as soon as possible in the proceedings, as I mentioned everything kind of grinds to a halt until there is a Litigation Friend or especially if you make allegations that the other party has lost capacity, you need to be acting quite quickly to try and prove it so the key aspect that the Court and all of the parties will be looking at is whether or not the person being proposed as a Litigation Friend has an adverse interest to that of the protected party.  You don’t have to be a lawyer to be a Litigation Friend; you just can’t have any sort of real conflict of interests between you and the protected party you are acting on behalf of.  Another key issue for someone to consider if they are considering being a litigation friend is that if the protected party is a claimant, the Litigation Friend has to undertake to pay any costs which the party might be ordered to pay in relation to the proceedings.  Now this is subject to a bunch of caveats but that is a pretty big exposure for them so, so something really important to bear in mind.  So if you don’t go to Court you can go through another process whereby you serve a certificate of suitability.  Again this is a very specific process; you have to file evidence of the protected party not having capacity to conduct proceedings as discussed.  You again have to confirm that you don’t have any adverse interest to the protected party and you have to also confirm that you can fairly and competently conduct the proceedings.  Again it doesn’t mean you have to be a lawyer, you can instruct lawyers but it can get very complicated in terms of who is paying the costs of all of this especially if the person you are representing has lost capacity.  So you can do that without Court but again I would always say that for considering either process, really legal advice is needed.  It can be complicated, it can be drawn out, there are different interests at play that will need to be considered so we do, we do advise often on Litigation Friend appointments and really if no one is able to step forward to be a Litigation Friend which can happen then the Official Solicitor has to step in but that’s really the sort of last case scenario.

Antonia Felix 
Yeah because you’d probably have the same issues that we have in the Family Court which is it’s buckling under the pressure and just the waiting lists are just so long.

Mariel Stringer-Fehlow
Exactly and especially if there is any question over their costs being paid which there is, especially if there is no one else to step forward as Litigation Friend, generally you have a situation where there’s no money unfortunately that does seem to go hand-in-hand and so the Official Solicitor will not agree to act if they can see there is no chance of them being reimbursed.

Antonia Felix 
So I think the key for us before we finish is to take advice on all aspects of litigation when it comes to vulnerable parties and capacity to litigate and we thought before we finish we’d just reflect on the last year, well eighteen months of Covid 19 and in many ways its delayed anything that the Court can do because there’s lack of funding and less people working but in many other ways its accelerated people’s thinking of how to get around issues such as vulnerability and one thing the Ministry of Justice has done which is a positive thing, is to make £200,000 available for the purchase of screens for use in family proceedings this year.  So that’s positive.  There are also negatives, one of them being that vulnerable witnesses have had to be in Court at home and in Children Act Proceedings that’s not ideal if they are vulnerable and their children are at home because they were home schooling and/or the other party is there as well and so it has created huge difficulties for people in litigation.

Mariel Stringer-Fehlow
Yeah, it’s definitely been an interesting eighteen months and I think as you said, the success of remote technology can be mixed but we’ve definitely seen the Civil Court has been really pushed to be creative and I think that’s actually made so much more progress in the eighteen months than the last sort of ten years in some ways and remote hearings have been helpful to a lot of those who would otherwise find travelling in and physically attending them more challenging.  Similarly I know both teams have had a lot of remote mediations which has been quite interesting to see, it sort of… even if you don’t consider yourself vulnerable, mediation and Court of course can be extremely stressful and very triggering for people to be in the same place physically so I think the emergence of e-mediations, remoted mediations, we’re doing a hybrid mediation at the moment you know with some people in an office, some people at home, has really opened up lots of different ways of people feeling perhaps more comfortable in that space.

Antonia Felix 
Yeah that’s exactly the same for us. 

Mariel Stringer-Fehlow
Great well I think we can definitely say as is apparent from this and I am sure from the rest of the series, there is no one size fits all on the issues of capacity or vulnerability so for now I think we will wrap up there.  I would like to say thank you to Antonia for joining me for this Mishcon Academy Digital Sessions podcast, I am Mariel and I hope you found ours series on vulnerable clients and mental capacity interesting. 

The Digital Sessions are a new series of online events, videos and podcasts all available at mishcon.com and if you have any questions you’d like answered or suggestions of what you would like us to cover, do let us know at digitalsessions@mishcon.com. 

The Mishcon Academy Digital Sessions.  To access advice for businesses that is regularly updated, please visit Mishcon.com.

In our second episode of the Vulnerability vs Incapacity podcast series, Antonia Felix and Mariel Stringer-Fehlow discuss what it means to be a vulnerable party, how vulnerable parties and witnesses are supported in litigation, and what can the legal system do better?

In our previous episode, Molly Hunter and Bethan Byrne provided an introduction to mental capacity and the applicable law, exploring the issues to be aware of in relation to mental capacity and vulnerability, and how best to support clients with fluctuating mental capacity. Listen to the first part of the series here.


Visit the Mishcon Academy for more learning, events, videos, podcasts and reports.

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