Overdue change means vulnerability will explicitly form part of proportionality test for first time
Posted on 16th December 2020 at 13:18
By Jon-Paul Burnett, director and Costs Draftsman
Solicitors are always having to adapt to ensure their client receives the best service they possibly can.
In what is a long overdue move, the CPRC have now accepted changes proposed to the definition of proportionality by the Civil Justice Council.
The adjustment will see proportionality explicitly take into account the ‘vulnerability’ of any party or witness. This relates to changes to the definition for proportionality with vulnerability specifically added to CPR 44.3(5).
This noteworthy difference is important because the issue of a client’s ‘vulnerability’ can have a major impact on how a case is heard, especially when dealing with clinical negligence or personal injury claims.
Vulnerability is not one homogenous group and there will be a number of factors in play.
In practice, a ‘vulnerable’ client can present in any number of ways – including but not exclusive to:
Blind or visually impaired
Hearing impaired
Non-English speaking
Suffer from Mental Health issues
Suffer from lack of mental capacity
Elderly people
Children
The CJC acknowledged that vulnerabilities can be "general or situational, permanent or temporary (or a mixture)."
Every reasonable measure must be taken to meet the needs of vulnerable clients.
Now that the CJC recognises that vulnerabilities can lead to a greater degree of time being expended upon a case this should be acknowledged in the assessment of costs – and the manner in which such cases are conducted.
Fee earners often need to adapt how they work and take this ‘vulnerability’ into account to ensure their client receives the exceptional service they deserve.
However, this can have increased cost implications because more time may need to be allocated to a case to deal with these complexities.
Questions often need to be set in advance so there are no surprises for a client in court. From time to time, other reasonable adjustments are also required – such as improved accessibility, flexible appointment times, visual communication assets, translators and advocates.
Unfortunately, paying parties all too often dismiss these efforts as being disproportionate or unnecessary “client care” costs.
In our experience, this is not true. Working with a ‘vulnerable’ client will often mean that increased costs are fully justified as a way of supporting access to justice. It should also be stressed that this move covers all vulnerable parties, including witnesses and not just the party bringing the litigation.
The change to proportionality, which was recently confirmed by the CPRC, is expected to be incorporated into the Civil Procedure Rules in 2021, together with a host of other changes designed to bring extra emphasis on the issue of vulnerability.
The Civil Justice Council have also accepted a number of other changes including to the Over-Riding Objective and the introduction of a new Practice Direction (PD 1A). Fixed Recoverable Costs (FRC) for cases involving vulnerable parties remain on the agenda with the Vulnerable Parties Sub-Committee resolving to liaise with the Ministry of Justice as part of possible amendments for discretionary increases in fixed, scale and capped costs, to reflect extra work caused by a vulnerability issue. Any changes to FRC may, however, be subject to further consultation.
The CJC does recognise that the issue is reasonably urgent and we will be following developments closely.
At Carter Burnett, we continually strive to ensure that the hard work of solicitors is never undervalued. We also recognise the significant importance of equity for all in preserving access to justice, particularly for those who are the most vulnerable.
In our opinion, it is welcoming to see the CPRC acknowledge that vulnerability is an important factor that cannot be overlooked. We also welcome the overdue recognition that vulnerability should be acknowledged when considering whether costs are proportionate.
If you need any help or advice on any of the issues raised above, please email info@carterburnett.co.uk or call 01482 534567 for an informal discussion.
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