Clipping the Wings of an Intermediary

With there being signs of a trend towards appointment of intermediaries to assist claimants in personal injury litigation, and with intermediaries appearing intent on exercising control over counsels' questioning of the claimant, the judgment of Farbey J in Morrow v Shrewsbury Rugby Club [2020] EWHC 379 may be seen as redressing the balance. Central features of the case were that there was a Claimant who suffered from anxiety but whose credibility was substantially in issue.

Prior to trial, the Designated Civil Judge had acceded to an application for appointment of an intermediary. The basis of the application was that the Claimant was suffering such anxiety that he needed an intermediary to assist him to understand the proceedings and give his best evidence. In a report placed before the Court the proposed intermediary envisaged that rules should be made in respect of counsels' questions, such that, for example, no question was to include more than a set number of "information carrying words", that she was to have a role in policing of the rules and that she would assist counsel in reformulating questions to be put to the Claimant. The DCJ, having decided an intermediary should be appointed, left it to the Trial Judge to hold a ground rules hearing at which the nature and scope of her role would be considered.

Farbey J, in undertaking that task, effectively rejected the notion that rules should be imposed in relation to counsel's questioning, the proposal that the intermediary should assist in formulating counsel's question's and the idea that the intermediary should act as an umpire. In that regard, she said: "In my view, it is not the role of an intermediary to take over the reins and make demands, or even requests, of counsel during the course of questioning". She added that that would be "a dangerous course ".

The Judge was also unimpressed by the idea that the intermediary should assist the Court by monitoring the Claimant's evidence to determine when he might be tiring and might need a break. That would effectively be usurping the function of the Court.

In the event, as the Judge said, the intermediary's contribution to the proceedings proved to be "negligible".

Geoffrey Brown was counsel for the Defendant, instructed by Philip Tracey of Plexus Law.