Abstract
This thesis describes an intellectual journey, undertaken in response to concerns about the limitations of litigation capacity, which confronts the challenge of applying a vulnerability approach to both humans and human-created systems.
The thesis argues that litigation vulnerability in clinical negligence claims should be conceptualised by reference to dependencies and differences which influence barriers to effective participation in the litigation process. It seeks to provide a framework for recognising vulnerability in the context of clinical negligence litigation, then proposes legislative tools and scrutiny measures which may facilitate litigation resilience. It posits that measures enabling access to justice require mechanisms for continuous scrutiny to ensure effective accessing of justice.
The thesis proposes that litigation vulnerability should be determined by reference to the overriding objective of the Civil Procedure Rules rather than predefined human characteristics. In reaching this conclusion, the thesis draws on critical legal theories, in particular the work of Martha Fineman, to examine vulnerability in relation to both the human participants and human-created frameworks.
The thesis identifies barriers to effective participation in litigation as a key determinant of litigation vulnerability. It posits that barriers to effective participation arise where participation is compromised or controlled as a result of human or systemic vulnerability. It argues that litigation support should be predicated on enabling a collaborative approach of effective participation by all participants whose voices will be relevant to the Civil Procedure Rules’ overriding objective.