On 11 October 2019 JUSTICE responded to the Civil Justice Council (“CJC”) consultation on vulnerability in the civil justice system.
The preliminary report by the CJC sets out a range of proposed recommendations aimed at improving the experience of vulnerable people in the civil justice system, a number of which mirror those from our 2019 Working Party report, Understanding Courts, chaired by Sir Nicholas Blake. These include proposed changes to the Civil Procedure Rules and questionnaires to more strongly emphasise the identification and participation of vulnerable people in the court process, additional judicial training around detecting and accommodating vulnerability as well as stronger guidance on the use of intermediaries. Our response endorsed the content of the preliminary report and merely identified areas where the final version could go into more detail. We suggested that the final report recommend that advocates, as well as judges, ought to have mandatory training around vulnerability and that until such time as there was compulsory training, judges ought to satisfy themselves that those appearing before them in matters involving vulnerable parties or witnesses are sufficiently trained to do so.
Our response also noted our ongoing concern that across the Reform Programme, insufficient regard is being given as to how the vulnerability of court users might be defined, identified and adjusted to within online courts. We suggested the final report recommend that HMCTS and the Online Procedure Rules Committee adopt a definition of vulnerability for the Reform Programme and online justice processes sufficiently robust to capture both the inherent (such as physical or mental disability) and situational (i.e. homelessness, detention or geographic factors) factors which impede a person’s ability to engage with an online court or tribunal. We agreed with the CJC’s recommendation that any online process ought to capture vulnerability through a direct questionnaire, but that in the absence of an equivalent early opportunity at a face-to-face hearing for vulnerability to be identified, any online inquiry must happen as early as possible in the user journey.