Background
Selman Turk applied for the appointment of an intermediary to support him during an upcoming 11-week civil trial. Turk has long-standing ADHD and takes medication. Psychiatric and intermediary reports prepared for an earlier contempt proceeding identified inattention as his principal vulnerability and recommended communication adjustments, particularly while he was giving evidence.
During the earlier contempt trial, an intermediary attended for opening submissions and cross-examination but not closing submissions. The judge in that proceeding found that Turk had understood the questions, maintained focus, and demonstrated a good grasp of complex transactions. In assessing the new application, the High Court applied the test stated in M (A Child): Intermediaries: whether intermediary assistance was necessary to achieve a fair hearing, assessed by reference to the particular person and task.
The Court’s Holding
Mr Justice Adam Johnson held that an intermediary was necessary while Turk gave oral evidence, including during cross-examination. The allegations included dishonesty, and the court accepted that the anxiety of cross-examination could aggravate Turk’s subtle attention and cognitive difficulties. Although Turk had performed well in the contempt trial, he had received intermediary assistance while giving evidence there.
The court declined to appoint an intermediary for the remainder of the trial. Turk would have counsel present, regular breaks, written opening and closing submissions, judicial reading periods, and daily transcripts that he could use to review anything missed through loss of focus. The slower pace expected during the claimant’s translated evidence would also help. The parties were directed to arrange a ground-rules hearing, while funding and practical arrangements were left to Turk and his legal team.
Key Takeaways
- In Business and Property Division proceedings, an intermediary should be appointed only when necessary to secure a fair hearing, not merely because the assistance would be desirable.
- Necessity is both person-specific and task-specific; assistance may be justified for cross-examination without being required throughout the trial.
- The court may consider prior judicial observations, available transcripts, breaks, representation, written submissions, and the expected pace of proceedings when evaluating other ways to address a litigant’s vulnerability.
Why It Matters
The decision illustrates how the High Court may accommodate a vulnerable litigant in complex commercial litigation while limiting intermediary support to the stage presenting the greatest risk to effective participation. It also confirms that courts may depart from broader expert recommendations when the evidence and practical safeguards support a narrower order.
For trial lawyers, the judgment underscores the need for focused evidence connecting a litigant’s condition to particular courtroom tasks and for a ground-rules hearing to settle appropriate communication measures before oral evidence begins.