Vulnerable Parties Under the Civil Procedure Rules

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Vulnerable Parties Under the Civil Procedure Rules: Why Practice Direction 1A and CPR 45.10 Matter

The Civil Procedure Rules refer repeatedly to vulnerable parties and witnesses yet nowhere do they define what vulnerability means.

This affects costs client care, retainer contracts, allocation, litigation strategy and ultimately costs recovery from both client and/or losing party.

With the expansion of Fixed Recoverable Costs and an increasing judicial emphasis on participation and fairness, understanding how vulnerability operates under Practice Direction 1A, CPR 26.9 and CPR 45.10 has become essential.

And yet, without a definition and more importantly without any structured training, how are vulnerable consumers truly protected within what can often feel like a legal whirlpool?

No Definition – Only Guidance

Despite multiple references throughout the Rules, there is no formal definition of what a vulnerable adult is.

Practice Direction 1A offers guidance rather than definition. It is intentionally broad.

This brings subjectivity. Subjectivity brings inconsistency.

Two practitioners may assess the same client differently. Two judges may approach vulnerability in different ways. That uncertainty carries risk.

Paragraph 6: Early Identification Is Not Optional

Paragraph 6 of Practice Direction 1A makes the court’s expectation clear:

“The court, with the assistance of the parties, should try to identify vulnerability at the earliest possible stage of proceedings.”

This is not passive wording. It places responsibility on legal representatives.

Early identification matters because it determines whether special measures are required, directions need to be tailored, and additional work will be necessary

Failure to raise vulnerability at the outset can have procedural and costs consequences.

Allocation: The Multi-Track Trigger

The issue becomes even more significant under CPR 26.9(10)(c). A claim must be allocated to the multi-track where it involves:

“a claim for damages in relation to harm, abuse, or neglect of or by children or vulnerable adults.”

Children are straightforward as statute clearly defines them.

Section 59 of the Safeguarding Vulnerable Groups Act 2006 once set out detailed categories which were themselves very limited, but that provision was repealed in 2012 and has never been replaced with an equivalent definition.

We are therefore left with a trigger for mandatory multi-track allocation but without a statutory definition of the very term that activates it.

That creates uncertainty.

Costs: CPR 45.10 and the 20% Threshold

Vulnerability also has direct financial consequences.

Under CPR 45.10, the court may allow costs exceeding the Fixed Recoverable Costs where:

A party or witness is vulnerable.
That vulnerability required additional work; and
That additional work alone increases the costs by at least 20%.

If those criteria are met, the court may summarily assess costs or order detailed assessment.

In practical terms, this means that the identification of a vulnerability can remove a case from fixed costs, justify uplift beyond the FRC regime and open the door to detailed assessment.

But again — what is vulnerability?

Why This Matters Now

Vulnerability is no longer simply a welfare consideration.

It is a procedural and financial risk factor.

Handled well, it protects the client and safeguards costs recovery.
Handled poorly, it risks misallocation, lost costs, inconsistent judicial treatment, and potentially a lack of fully informed consent thus undermining the integrity of the retainer itself.

Bringing Structure Where the Rules Are Silent

Where the Civil Procedure Rules leave a concept undefined, careful consistent interpretation becomes critical.

The Legal Lexi provides structured analysis of undefined CPR terminology, enabling practitioners to:

Identify vulnerability consistently and defensibly
Support informed client consent
Put appropriate support mechanisms in place
Satisfy regulatory obligations under the Solicitors Code of Conduct
Strengthen arguments for departure from Fixed Recoverable Costs

In a post-FRC expansion landscape, understanding vulnerability is not optional.

It is fundamental to protecting both your client and your costs position.

Want clarity where the CPR is silent?

Discover how The Legal Lexi can support the identification of vulnerable clients and strengthen your litigation strategy.

Contact us for a free, no-obligation demonstration at info@thelegallexi.co.uk

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