Suggested protocol for witness funding – public inquiry not bound by the Inquiry Rules
The Inquiry Rules 2006 make detailed provision for public funding of legal representation for witnesses. Rule 7 deals with joint representation. Rules 20 to 34 set out a procedure for determining the amounts payable. In a public inquiry that is governed by those Rules it may not be necessary to have a costs protocol. However, in a non-statutory public inquiry it is desirable to have a protocol agreed with the sponsoring department. The following is an example. Parts of it may usefully be adapted even for those public inquiries governed by the 2006 Rules, for example the division of witnesses into category A and B.
This protocol applies to those who are to participate in the inquiry as witnesses or as interested parties and who are to be legally assisted at public expense. It does not apply to witnesses who are directly supported by Government departments. It is subject to any specific terms and conditions placed on such funding in any individual case.
Witnesses providing oral evidence at the public inquiry hearings can be divided into 2 categories.
Category A will contain those persons who it is anticipated will not be subject to any significant criticism in relation to the terms of reference of the inquiry.
Category B will comprise those persons who it is anticipated may face some significant criticism in connection with the terms of reference of the inquiry.
Every prospective witness will be given an indication of their allocation to the relevant category by the inquiry when served with the materials for preparation for the hearing. If any witness considers that there are grounds upon which he or she should be transferred to another category, full written representations setting out those grounds must be received by the inquiry within a period notified to them on service of the documents. The costs that may be met by the Inquiry in respect of those representations, if any, must be agreed in advance with the Inquiry Solicitor.
Nothing in this protocol affects core participants or those prospective witnesses who are not to be called to give oral evidence.
General principles relating to criticism of witnesses
- Inquiry Counsel shall conduct the examination of the witnesses before the Inquiry Panel. If a witness wishes lines of questioning to be followed in respect of another witness he or she should provide them to the Inquiry Solicitor. If Inquiry Counsel declines to follow those lines the witness may apply to pursue them directly. Insofar as public funds are sought in respect of such applications they must be agreed in advance with the Inquiry Solicitor
- For the avoidance of doubt, all points of criticism which a witness wishes to make of another witness should be notified to Inquiry Counsel in advance of any criticism being made
- The principles set out in any applicable Costs Protocol shall apply in the conduct of witnesses and their representatives, whether publicly funded or not.
Category A procedure
It is not expected that witnesses in this category will require public funding for any legal assistance after they have signed their witness statements.
Any additional public funding must be agreed with the Inquiry Solicitor in advance. Insofar as any may be granted it will be subject to the terms of any extant Costs Protocol and any specific terms and conditions applied to the particular grant.
Witnesses in this category will not be expected to be represented at the hearing. The Inquiry will provide dedicated staff to assist witnesses when they attend and to answer any queries by telephone or correspondence prior to attending.
No cross-examination of any other witness will normally be permitted by or on behalf of a witness in this category. Nor will written or oral submissions at the hearing normally be received. In the event that the witness exceptionally seeks to cross-examine or to make submissions, a written application may be made to the Inquiry Solicitor.
The Inquiry Solicitor must agree in advance any request for public funding in relation to the costs of such applications.
Counsel to the Inquiry will keep the categorisation of witnesses under review and if any development gives them cause to believe that any significant criticism of a witness in this category may be made they will re-allocate the witness to Category B. Further, it is open to a witness at any time to apply to the Inquiry Solicitor to be transferred to Category B in reliance on a change in circumstances.
Category B procedure
Each witness in this category will be notified of:
(a) the nature of any significant criticism that may be anticipated and the anticipated source of such criticism and
(b) the anticipated level of publicly funded preparation and participation on behalf of the witness at the oral hearing
Within a period to be notified on service of the documents each witness in this category may serve a notice on the Inquiry Solicitor if he or she seeks any variation of the envisaged funding and participation. The merits of such an application will be determined prior to the opening of the hearing, subject to review at an oral hearing by the Inquiry Chairman, if requested by the witness.
If, during the Inquiry hearings, the witness wishes to rely on a change in circumstances to justify any variation in his funding, this must be notified to the Inquiry Solicitor in advance. Insofar as it is not possible to agree such a variation the matter will be determined by the Chairman. Any application for public funding of an oral application may be determined summarily by the Chairman after hearing the application provided a written schedule detailing the relevant costs has been provided to the Inquiry Solicitor at least 24 hours in advance of such a hearing.