Commentary on Sections Part 2 – Provision for Civil Proceedings Section 38: Prohibition of cross-examination in person in civil proceedings generally
Section 38 inserts the following new Articles into the Civil Evidence (Northern Ireland) Order 1997 to give a court hearing civil proceedings a discretionary power to prohibit cross-examination in person and includes provision for the court to appoint a publicly-funded legal representative to conduct the cross-examination instead.
New Article 7A defines the meaning of ‘civil proceedings’ and ‘witness’ for the purpose of the inserted Articles, and provides that the Department of Justice may by regulations alter the former definition.
New Article 7B provides a discretionary power for the court to give a direction prohibiting cross-examination in person.  Such a direction can be given if it appears to the court that either the ‘quality condition’ or the ‘significant distress condition’ is met and it would not be contrary to the interests of justice to give the direction.  The ‘quality condition’ is met if the quality of evidence given by the witness is likely to be diminished if the cross-examination is conducted by the party in person and is likely to be improved if a direction is given.  The ‘significant distress condition’ is met if cross-examination in person is likely to cause significant distress to the witness or party, and that distress is likely to be more significant than would be the case if the witness were cross-examined by a person other than the party.  A direction under this provision can be made on an application by a party to the proceedings or of the court’s own motion.
New Article 7B(5) sets out factors that the court must consider when deciding whether or not the ‘quality condition’ or ‘significant distress condition’ is met.  This covers views expressed by the witness or the party; the nature of the questions likely to be asked; any finding of fact that has been made about the party’s or witness’s behaviour; how the party or witness is acting; and any relationship between the witness and the party.  The list is not exhaustive.
New Article 7B(6) and (7) define what is meant by the quality of a witness’s evidence.
New Article 7C provides more detail in relation to directions made under new Article 7B. This covers how long a direction may last and the circumstances in which a court may revoke a direction.  The court is required to state its reasons for giving, refusing, revoking or refusing to revoke a direction.
New Article 7D provides for alternatives to cross-examination in person where a party to civil proceedings is prohibited from doing so.  First, the court must consider if there is a satisfactory alternative means for the witness to be cross-examined or of obtaining evidence that the witness might have given under cross-examination.  If not, the court must invite the party to arrange, within a specified time, for a qualified legal representative to cross-examine the witness on the party’s behalf, and to notify the court of the arrangements.  If the party does not make such an arrangement within the specified time, or the court has not received any notification of such an arrangement, the court must consider if it necessary in the interests of justice, to appoint a qualified legal representative to cross-examine the witness in the interests of the party.  A qualified legal representative appointed by the court is not responsible to the party other than acting in the interests of the party in accordance with the provision.
New Article 7D(8) explains what is meant by ‘cross-examination’ and ‘qualified legal representative’.
New Article 7E requires the Department of Justice to pay the fees, costs and expenses properly incurred by a qualified legal representative appointed under new Article 7D, and that the Department may specify in regulations the sums or rates payable.
New Article 7F provides that the Department of Justice may issue, and subsequently revise, guidance about the role of a qualified legal representative appointed under new Article 7D.  It also requires the qualified legal representative to have regard to such guidance and for the Department to publish the guidance and any revisions to it.
New Article 7G provides that regulations under new Articles 7A to 7E are subject to negative resolution other than regulations under new Article 7A(2) to amend the definition of ‘civil proceedings’, a draft of which must be laid before and approved by the Assembly.