Policy paper

Special measures in civil proceedings

Updated 3 January 2024

What are we going to do?

To provide that victims, or alleged victims, of certain offences, and those who are victims, or at risk, of domestic abuse, have access to special measures in civil proceedings where their vulnerability is likely to diminish the quality of their evidence, or otherwise affect their ability to participate in the proceedings.

This could enable them, for example, to give their evidence from behind a screen or via a video link which would help them to better participate in civil proceedings without fear or distress.

For the justice system to work appropriately, assistance must be provided to those that need it, to ensure they can take part in proceedings to the best of their ability.

Sir Terence Etherton, Master of the Rolls and Chairman of the Civil Justice Council, February 2020

How are we going to do it?

The Act enshrines in primary legislation a requirement that Court Rules must make provision to enable the court to make a special measures direction in relation to victims and alleged victims of specified offences (to be specified in regulations made by the Lord Chancellor), and victims, or those at risk of being victims, of domestic abuse, and to require the court to consider whether the quality of their evidence or their participation in the proceedings is likely to be diminished by reason of vulnerability.

A person is the victim of a specified offence if another person has been convicted of, or given a caution for, the offence; or a person is the alleged victim of a specified offence if another person has been charged with the offence.

The purpose of the provision is to ensure that rules are made setting out when and how special measures directions should be made in such cases.

The Lord Chancellor will also make regulations specifying which offences are relevant for the purposes of these rules.

Background

Special measures are a series of provisions that help vulnerable witnesses give their best evidence in court and help to relieve some of the stress associated with giving evidence. Currently, in the civil courts, judges have an inherent power to order the provision of special measures when it is considered necessary. This includes, but is not limited to, giving evidence via video link, from behind a screen, or through an intermediary or an interpreter, but it’s not clear how consistently these inherent powers are used.

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 to consider all vulnerable witnesses and parties within civil proceedings. After a public consultation and seeking 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.

The CJC report did not go as far as recommending that special measures should be enshrined in primary legislation. Rather, it felt that it was best left to the flexibility of court rules, since judges in civil proceedings already have inherent powers to order the provision of special measures when it is considered necessary.

While the Government has accepted most of the CJC’s recommendations, it has decided to legislate for special measures in civil proceedings in this Act.

The Government is also legislating for a prohibition of cross-examination in civil proceedings provision (see section 66 and fact sheet “Prohibition of cross-examination in person in civil proceedings” for further information).

This will bring the civil courts in line (as far as appropriate) with the criminal and family courts, thereby providing protection for vulnerable witnesses and victims in each jurisdiction, and a better and supported experience of access to justice in the civil courts. Sections 62 and 63 of the Act make similar provisions with respect to special measures in criminal proceedings and family proceedings.

What meant by a ‘specified offence’?

The offences that are relevant here are to be specified in regulations to be made by the Lord Chancellor under the power in section 64(4). It is intended to use regulations to specify a comprehensive list of domestic abuse-related and other violent and sexual offences, including child abuse offence, based on the list of offences set out in documents issued by the Lord Chancellor as referred to in Schedules 1 and 2 to the Civil Legal Aid (Procedure) Regulations 2012 (SI 2012/3098). The regulations may also specify offences which have been repealed and replaced but which remain in force insofar as they could be prosecuted in respect of conduct committed prior to their repeal. In addition, it is intended to make provision in relation to any similar domestic abuse-related, violent or sexual service disciplinary offences.

Will victims, or alleged victims, of a specified offence automatically get special measures to help them to give their evidence in civil proceedings?

Whether any special measures are ultimately provided in a particular civil case will depend on whether the court considers they would likely improve the quality of the witness’s evidence, or a party’s participation in the proceedings. Special measures might only be appropriate in certain civil cases and not others, but the new rules will require the court to consider whether a special measure direction should be granted.

Will the Civil Procedure Rule Committee take forward the recommendations of the Civil Justice Council insofar as it relates to the civil procedure rules?

The Civil Procedure Rule (“CPR”) Committee has already seized of the Civil Justice Council’s (“CJC”) report and its recommendations and, as such, has set up a sub-committee to examine the CJC’s report and made amendments to the Overriding Objective of the Rules, to address the issue of vulnerability. The sub-committee is now examining changes to the rules of court and the new practice direction arising from sections 64 and 66 of the Act.