Minor witnesses in personal injury claims: Practical guidance

When a claimant under the age of 18 makes a personal injury claim, they're required by law to have a litigation friend to act on their behalf. A litigation friend is required because a claimant under the age of 18 is deemed to lack capacity to litigate.

I acted for a minor claimant in relation to an accident at school. In this case, the claimant sustained lower limb orthopaedic injuries when taking part in a rugby warm up activity at school. A letter of claim was sent to the school alleging fault for the claimant’s accident, but the school denied liability. There were discrepancies between the parties as to what instructions were provided to the students taking part in the activity and the level of supervision given.

My role as a serious injury lawyer is to obtain evidence in relation to liability and assess prospects; in other words, could we rebut the defendant’s assertions in this case? As mentioned, there were opposing versions of events and I was of the view that obtaining witness evidence would be the best evidence in a bid to narrow the issues.

The claimant was under 18. The other students involved in the activity who could attest to the conduct of the game were also under 18. This raised a few questions:

• Can we obtain and rely on witness statements from minors?
• What is the correct process to obtain statements from minors given their vulnerable status?
• In practice, how does a minor witness give evidence at a trial?

The Civil Procedure Rules unfortunately do not provide specific guidance on the steps to take when obtaining and relying on witness statements from minors, who are deemed vulnerable parties. I find this interesting given that there can be a need for minors to give evidence. Granted, a statement from a minor may not be necessary in a liability admitted case when their parents and/or litigation friend can comment on key quantum issues such as ongoing symptoms and care needs. However, in a case where liability is denied and the only witnesses supportive of the case are minors, this can cause complexities.  

In this case, I considered the rules governing criminal proceedings and family law matters. Section 16 of the Youth Justice and Criminal Evidence Act 1999 details the eligibility for special measures for witnesses who are vulnerable due to age or incapacity in criminal proceedings. In the context of family law, the Family Procedures Rules include specific provisions in relation to vulnerable witnesses. This will normally involve an intermediary to help with giving evidence, which can involve communicating and explaining questions to the minor witness for example.

The first step I undertook when considering taking statements from minor witnesses is the need to obtain approval from the witness and his/her parent or guardian. It's wise to also ensure that the minor’s parent or guardian is present when the witness statement is obtained, and that this information is included in the body of the witness statement. 

We must also be mindful of how we phrase the questions put to the minor witness. In my view, these need to be clear, easy to understand and, importantly, age appropriate.  The finalised statement should be sent to the witness and his/her parent or guardian for checking before the minor witness signs the statement. We must carefully ensure that the minor witness agrees and understands the content of the witness statement and the implications of signing a statement of truth.

In terms of giving evidence at trial, the court has the power to lay down directions to ensure the minor witness can give their best evidence. Special measures can include an intermediary and breaks when giving evidence.

Lawyers should always consider the benefits of obtaining witness statements from minors, as in some instances this evidence will be crucial, especially if it relates to liability issues. 

In the aforementioned case, we obtained and served witness statements from the minor claimant and two minor students. Following service of witness statements, the defendant considered the strength of the claimant’s evidence and made offers in settlement of the claim. Negotiations commenced and the claim successfully settled, prior to a liability trial.

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