Policy paper

Cross examination in civil proceedings

Updated 3 January 2024

What are we going to do?

Ensure that in civil proceedings a witness can give evidence without being cross-examined by an unrepresented party to the proceedings where the court considers that this would diminish the quality of the witness’s evidence or cause the witness significant distress. This will bring the civil courts in line (as far as appropriate) with the criminal and family courts, thereby providing protection and support for vulnerable witnesses and victims (including victims of domestic abuse)in the civil courts.

The government has accepted the recommendation of the independent Civil Justice Council to extend the ban on cross-examination in person in the civil jurisdiction. By doing so, we believe this will ensure that vulnerable victims or witnesses coming to the civil courts have confidence that the court will not be used to perpetrate further abuse against them.

Alex Chalk, Parliamentary Under Secretary of State, Ministry of Justice

How are we going to do it?

The Act enshrines in primary legislation provisions that would enable a court to give a direction prohibiting the cross-examination in person in civil proceedings where cross-examination in person by the perpetrator is likely to diminish the quality of the witness’s evidence, or would cause significant distress to the witness. This provision will also apply reciprocally so that the court may prevent a victim cross-examining the perpetrator or alleged perpetrator.

The Act provides for an automatic ban on cross-examination in person when the party to proceedings has been convicted or cautioned of an offence, if there is an injunction between the parties or if there is other evidence (to be specified in regulations, but likely to include, for example, a copy of a finding of fact made in legal proceedings in the UK, a letter or report from a health professional, a letter from any person who is a member of a local safeguarding forum or a letter from an independent domestic violence advisor).

Where such a direction is given, the court will consider if there are alternatives to cross- examination and, if not, invite the witness to appoint a legal representative to conduct the cross examination or appoint a legal representative to conduct the cross-examination, paid for from central funds.

Background

In the civil courts, there are no specific provisions in the Civil Procedure Rules dealing with vulnerable parties or witnesses. The Court has an overriding objective to deal with cases fairly and to manage cases actively, but there is no specific rule or practice direction on the issue of vulnerability. The Court has a broad power to control how evidence is put before it, including limiting the extent of any cross-examination.

In April 2018, the Independent Inquiry into Child Sexual Abuse published its Interim Report and recommendations. The Inquiry recommended “That the MoJ provides primary legislation and works to ensure that the Civil Procedure Rules are amended so that victims and survivors of CSA in civil court cases, where they are claiming compensation in relation the abuse they suffered, are afforded the same protections as vulnerable witnesses in criminal court cases”. As the Inquiry put it, this was to ensure that victims and survivors of child sex abuse can provide the best evidence in civil court cases.

Following that, the Government commissioned the Civil Justice Council (“CJC”) - which is an advisory body chaired by the Master of the Rolls responsible for overseeing and co-ordinating the modernisation of the civil justice system - to consider the issues raised by this recommendation and to compile a report, the scope of which was not limited to victims and survivors of child sex abuse but rather considered all vulnerable witnesses and parties within civil proceedings. After a public consultation and views from experts, the CJC published their report, “Vulnerable Witnesses and parties within civil proceedings – current position and recommendations for change”, in February 2020. The report conceded there was no single or coherent set of rules in the Civil Procedure Rules dealing with vulnerability in the same way as in the Family Procedure Rules and, as such, made a number of recommendations.

One of those recommendations was in relation to the prohibition of cross-examination by a self-represented party. The report recommended that provision should be extended to cover civil proceedings, thereby ensuring parity with the criminal and family jurisdictions. The CJC did, however, caution that the ban or prohibition should not be absolute. Rather, the court should retain a discretion not to apply the prohibition, given the civil and family jurisdictions are very different as regards the types of cases covered; with the civil jurisdiction having a much wider range of cases before it. Section 66 of the Act gives effect to the CJC’s recommendation.

The Government is also legislating for a special measures provision in the Act (see section 64 and fact sheet “Special measures in civil proceedings: victims of specified offences” for further information). Section 65 of the Act makes similar provision in respect of cross-examination in person in family proceedings.

Why are the provisions prohibiting cross-examination in person not the same in all jurisdictions?

The starting point for the provisions was quite different, based on the very real differences between the cases before the courts. During the passage of the Domestic Abuse Bill, following feedback from stakeholders, the provisions have come closer together but some differences remain, reflecting the different issues under consideration.