Policy background Cross-examination and special measures in civil proceedings
In the civil courts, there are no specific provisions in the Civil Procedure Rules ("CPR") dealing with vulnerable parties or witnesses. The Court has an overriding objective to deal with cases fairly and to manage cases actively, but there no specific rule or practice direction on the issue of vulnerability.
	CPR 32.1 gives to the Court a broad power to control how evidence is put before it, including limiting the extent of any cross-examination.
	Additionally, 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, by deposition, use of other technology, or through an intermediary or an interpreter.
	In April 2018, the Independent Inquiry into Child Sexual Abuse published its Interim Report and recommendations. Recommendation 9 stated:
	"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."
	Following that, the Ministry of Justice commissioned the Civil Justice Council ("CJC") - which is an advisory body chaired by the Master of the Rolls and is 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 CPR dealing with vulnerability in the same way as in the Family Procedure Rules and 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 too, 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; with the civil jurisdiction having a much wider range of cases before it. Section 66 gives effect to the CJC’s recommendation.
	The CJC report did not go as far as recommending that special measures should also 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 a special measures provision in civil proceedings in this Act (see section 64).
	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.