The role of the Court Examiner

This is an article outlining the role of the Court Examiner in particular with reference to parties or witnesses too ill to attend trial. Judy Dawson was appointed Court Examiner in 2017 and sits as the same throughout the North of England.

On being appointed by the Lord Chancellor to be a Court Examiner the most frequent response, even from members of the legal profession, was “What does a Court Examiner do?”. It is a quasi-judicial role governed by the provisions of CPR34.8. A Court Examiner can be tasked to take evidence from a person within the UK on behalf of a foreign court in relation to a trial occurring overseas but is most often used in those cases where a witness (usually the Claimant) will be (or might be) unable to attend the trial, so sadly tends to be used in mesothelioma or other cases where a party or witness has a terminal illness and the trial will take place at a time when the witness may be unable to attend. It is not reserved for this; a party faced with a witness shortly due to emigrate for example may feel that his or her evidence would be given far more weight if subject to cross-examination at an earlier hearing rather than merely served with a Civil Evidence Act Notice.

The Court Examiner essentially takes the evidence of the party or witness concerned in the manner that a Judge would do, ensuring that the same is recorded and a transcript is produced for the Trial Judge. In some cases, both parties will be represented by Leading Counsel, in others there may be no representatives present. There is far more flexibility surrounding where, when and in what circumstances such evidence can be taken. It does not have to be in a court-room; a conference room in a hotel very close to the witness’s home address (perhaps with a room set aside for the witness to rest if necessary), at one of the parties’ solicitor’s office, at the witness’s home, or even in a hospital ward if necessary. Far more flexibility in timing and breaks can be allowed than would be possible in the course of a trial, and such hearings can usually be fixed at very short notice.

Practical Measures

A party wanting evidence to be taken by a Court Examiner will need to obtain a direction from the Court ordering the same. Ordinarily this will be done at case management and the direction will usually give a date by which such evidence should be taken with the party requesting the same to make the arrangements. This will involve obtaining legal representatives’ attendance if necessary, arranging the location, contacting a Court Examiner, and arranging the relevant short-hand writer and/or recording equipment and production of the transcript (there are numerous companies which undertake this and if the parties view it as necessary a video of the Claimant giving evidence can be also recorded). In most cases a bundle for the hearing will also need to be produced, containing at the minimum the witness’s statement(s) and any documents which either party wishes to refer the witness to in the course of the evidence. Such bundle will need to be paginated and filed with the transcript so that the Trial Judge can check to what the witness was referred.  It is therefore far better to consult all parties and produce a slim bundle of only the documents to which the parties are likely to refer to rather than produce a massive bundle of all disclosure which will be extremely unwieldy and essentially merely duplicate the trial bundle. (The actual trial bundle could be used but it is almost impossible to predict the full contents of a trial bundle months before trial). Other documents can be available at the examination and be added into the bundle during the course of the hearing if unforeseen matters arise.

Depending on the degree of urgency, the timing of the examination needs to be carefully considered. In an ideal world the witness gives evidence at trial and can be cross-examined on matters arising in other witness’s statements if necessary, and documents produced on disclosure. If a witness is to be examined before any disclosure or witness exchange has taken place, there will almost inevitably be matters which have not been dealt with but may become relevant. The urgency of the situation may prevent this but an examination will be of more use to the Trial Judge if it has been carried out after disclosure and exchange.

The conduct of the examination can be flexible and is within the discretion of the Court Examiner, beyond the obvious necessity to give evidence on oath or after affirmation. Usually evidence in chief will be confined to confirming the accuracy of the statement as would be normal at trial and then cross-examination follows. The health and medical needs of the witness can be catered for as much as possible commensurate with the obtaining of their evidence.

At the conclusion of the evidence, the transcript will be obtained (usually by the requesting party’s solicitor) which will be certified by the Court Examiner and then filed with the Court for the Trial Judge. The Court Examiner is entitled to charge specific fees set out in CPR 34 and is entitled to withhold the transcript until paid!

The Court system is often blamed for being archaic, inflexible and unable to cope with vulnerable witnesses. The Court Examiner system seems to me to meet that criticism in an admirable manner; having been presented with the problem of witnesses being unable to attend a trial listed many months away, CPR 34 provides a simple and effective way of remedying the situation without dispensing with the essential safeguards of the trial process.

Judy Dawson is a personal injury practitioner who sits as a Court Examiner throughout the North of England. Enquiries as to her availability for sittings can be made to her clerks:

Madeleine Gray on 0113 2028603 or Madeleine@psqb.co.uk

Francine Kirk on 0113 202 8605 or Francine@psqb.co.uk