Striking the balance – capacity, evidence and special measures in catastrophic personal injury claims

Introduction

In catastrophic personal injury claims, the claimant’s evidence is often key to both liability and quantum, particularly in cases involving lifetime care, accommodation and past and future loss of earnings. Disputes about litigation capacity frequently arise where claimants have suffered severe brain injury, neurological impairment or psychiatric trauma.

Where a claimant lacks capacity, many think it is an “all or nothing approach” and that if the claimant lacks capacity, they are automatically debarred from giving evidence. However, a claimant who lacks litigation capacity is not automatically debarred from giving evidence. Procedural adaptations or special measures can be utilised to assist the claimant (or any witness) to give evidence. But these measures must not be implemented in a way that undermines the defendant’s ability to test the claimant’s evidence.

The court’s task is a careful balancing exercise and the framework for this is provided by:

• Civil Procedure Rules (CPR), particularly Parts 1, 3, 21, 32, and 39;
• Practice Direction 1A (“Participation of Vulnerable Parties or Witnesses in Civil Proceedings”);
• The Mental Capacity Act 2005 (“MCA 2005”). 

The legal framework

1. The overriding objective and early identification 

CPR r.1.1 requires courts to deal with cases justly, which includes: 

• ensuring that parties are on an equal footing.
• saving costs; and
• dealing with cases proportionately.

Practice Direction 1A requires the court to identify vulnerable parties and consider whether special measures are required, thus assisting the court in dealing with a case by ensuring that the parties are on an equal footing and are able to participate fully in the proceedings. PD 1A makes it clear that:

• vulnerability does not equate to incapacity.
• adjustments should be proportionate and evidence-based; and
• special measures include screens, video-link, intermediaries, pre-recorded evidence, or structured questioning, but only when justified by demonstrable vulnerability.

PD 1A sets out a number of factors which may cause vulnerability. If a factor is identified, consideration should then be given to whether this may adversely affect the ability of a party to participate in proceedings and/or give evidence. The Practice Direction then goes further and sets out what the court should consider and gives a broad discretion of the type of “special measures” that can be ordered.

For example, at a case management conference, a claimant with a severe brain injury may request an intermediary. The court will require evidence of functional impairment before approving such measures, the claimant may be given structured questions to be answered in advance of a hearing or trial or a claimant may give evidence via video-link with an intermediary present and/or the court may structure cross-examination into short, topic-specific sessions.

2. Litigation capacity and litigation friends

Where a claimant lacks litigation capacity, CPR Part 21 requires a Litigation Friend to conduct proceedings on the claimant’s behalf.

Under the MCA 2005:

• capacity is decision-specific and time-specific.
• there is a presumption of capacity unless proven otherwise (s.1(2)).
  determining capacity is particularly important in catastrophic injury claims where settlement decisions and trial strategy have long-term financial implications.

3. Competence to give evidence (CPR Part 32 and PD 1A)]

CPR Part 32 sets out that witnesses must be able to understand questions and provide intelligible answers. Competence to give evidence is distinct from litigation capacity. PD 1A emphasises that special measures may be needed to facilitate participation, but they should not prevent the defendant from testing evidence.

4. Case management and special measures (CPR Part 3, CPR Part 39 and PD 1A)

• CPR Part 3 empowers the Court to manage proceedings and control how evidence is given.
• CPR Part 39 governs hearings and trials.
• PD 1A directs Courts to consider whether evidence can be given reliably, whether adjustments are necessary, and whether the defendant’s ability to test evidence will be affected.

The High Court guidance in CXC v Clarke & Anor [2024] EWHC 3138 (KB)

In CXC v Clarke & Anor the High Court gave guidance on how a party should approach instructing an intermediary for a vulnerable party:

• The court cannot decide what protective measures are required until a relevant vulnerability is identified. This needs to be established by appropriate (expert) evidence.
• Court permission is required to use an intermediary and thus the appointment of an intermediary is a matter for the court. A party, however, does not need permission from the court to obtain an intermediary’s report.
• Intermediaries (or special measures) are not automatically granted; the court must be satisfied that they are necessary, and their role must be proportionate to deal with the vulnerability.

The case sets out the steps that should be taken where a vulnerability is potentially identified and specifically in respect of the involvement of an intermediary in a specific case. But it also provides general steps that parties are to follow when special measures are being considered:

• If the claimant has a vulnerability, an intermediary should be instructed to produce a report.
• Depending on the content of the report, and with reliance on it, an application (including a draft order) for special measures should be made in respect of that vulnerability.  
• If the intermediary recommends that they attend trial to assist, directions and additional measures should be considered at a hearing with the intermediary in attendance.

This authority underscores that the court must ensure that the rights of vulnerable parties are protected but that this does not compromise the defendant’s ability to scrutinise forensically the claimant’s evidence.

Practical case management considerations

1. Early identification of vulnerability and capacity issues

• Flag cognitive, neurological, or psychiatric impairments when proceedings are served or at the directions questionnaire stage.
• Early identification allows timely expert assessment under MCA 2005.
• CXC v Clarke & Anor demonstrates that courts will not approve special measures without supporting expert evidence.

2. Obtaining expert evidence on capacity and competence

Experts can provide opinions on:

• litigation capacity (ability to instruct counsel and make decisions)
• competence to give evidence (understanding, recall, intelligibility)

Evidence assists the defendant in opposing disproportionate special measures and informs ground rules hearings.

3. Ground rules for hearings and structured evidence

• Determine questioning format, use of intermediaries, video-link, screens, or private examination.
• Ensures cross-examination remains effective, preserving the defendant’s rights.

4. Balancing special measures against forensic testing

• Special measures must be proportionate as overuse can shield evidence and impede proper scrutiny.
• CXC v Clarke & Anor confirms that broad intermediary orders require clear justification and are unlikely.

5. Interim and reviewable measures

• Accommodate fluctuating capacity through interim, reviewable measures.

Adjust or remove measures if expert evidence shows improved capacity.

6. Use of alternative evidence

• Where direct testimony is unreliable, rely on expert evidence, carers, medical records, or surveillance.
• Ensures trial outcomes are based on reliable, testable evidence.

Conclusion

In catastrophic personal injury claims:

• a claimant who lacks litigation capacity is not automatically excluded from giving evidence.
• special measures must be justified, proportionate, and evidence based.
• the court must balance effective participation with the defendant’s right to fully test evidence.
• authorities such as CXC v Clarke & Anor underscore that procedural measures must facilitate participation without compromising the defendant’s ability to challenge the claimant’s evidence.

For defendants in large-loss personal injury claims, disciplined case management, early expert evidence and careful engagement with PD 1A and MCA 2005 principles are essential to ensure fair trials for both parties.