Navigating neurodiversity

In the last few years there has been a significant increase in the number of adults diagnosed with autism spectrum disorder (ASD) and attention deficit/hyperactivity disorder (ADHD). General awareness of neurodiversity has grown. As a result, we are seeing an increase in the number of employment tribunal claims citing discrimination linked to neurodiversity. This has also been a contentious topic in the Business and Property Courts. 

In September, Mr Justice Mellor heard an unprecedented application for permission to adduce expert evidence in relation to how ASD manifests itself in affected individuals and what reasonable adjustments a witness would require at trial.

Background to COPA v Wright

The Crypto Open Patent Alliance (COPA) was formed to encourage the adoption and advancement of cryptocurrency technologies and to remove patents as a barrier to growth and innovation. It has over 30 members, including Meta.

Dr Craig Wright is an Australian computer scientist who claims to be Satoshi Nakamoto, the creator of bitcoin, who has an untouched bitcoin store valued at around $35bn. In 2019, Dr Wright filed a copyright registration claiming the right to the Bitcoin White Paper and related source code. He then threatened legal action against a number of crypto companies using the bitcoin name. This included a member of COPA, which then issued proceedings in the High Court demanding that Dr Wright prove that he is in fact Satoshi.

This issue, referred to as the ‘identity issue’, is relevant to three other sets of live proceedings in the High Court involving Dr Wright. With proportionality in mind, Mr Justice Mellor directed that the COPA case would consolidate the identity issue. The decision, which will confirm whether Dr Wright is Satoshi, will be binding in all four live sets of proceedings and is likely to have far-reaching consequences for the cryptocurrency industry.

ASD expert evidence application

The defendant’s application sought permission to introduce the expert report of Professor Seena Fazel, a distinguished expert in forensic psychiatry. This report, based on interviews with Dr Wright and his family, concluded that Dr Wright’s ASD will significantly influence his interaction and presentation in court, necessitating reasonable adjustments for a fair trial.

As a vulnerable individual with a disability, Dr Wright’s legal team asserted that the court would naturally wish to consider the reasonable adjustments necessary to accommodate him at trial. Expert evidence would plainly be of assistance in this regard.

COPA vigorously opposed the application, citing undue delay and arguing that insufficient time remained before the trial for COPA to counter with its own expert evidence. Opposing counsel questioned the necessity of such an application, pointing to Dr Wright’s past appearances in other proceedings without apparent difficulty. Additionally, COPA asserted that Dr Wright had engaged in expert shopping before settling on Fazel.

Legal landscape and applicable principles

Due to the unprecedented nature of Dr Wright’s application in commercial litigation, Mr Justice Mellor sought guidance from principles established in criminal cases. He relied on R v Mulindwa [2017] EWCA Crim 416, in which the Court of Appeal gave clear guidance on the permissible role of an expert in cases where a witness’s mental condition may affect the reliability of their evidence. As a matter of general principle, it held that medical evidence is admissible to show that a witness suffers from a condition that affects the reliability of theisr evidence. However, there is a clear dividing line between evidence that may provide a judge or jury with necessary assistance in understanding the presentation of a witness in the box and an expert’s opinion about the credibility or truthfulness of the evidence itself.

Mr Justice Mellor also noted the relevance of CPR PD 1A, which relates to the participation of vulnerable parties and witnesses. The overriding objective requires the court to ensure, so far as practicable, that the parties are on an equal footing and can participate fully in proceedings and that parties and witnesses can give their best evidence. CPR PD 1A reminds us that the vulnerability of a party or witness may impede participation and diminish the quality of evidence. ‘The court should take all proportionate measures to address these issues in every case.’ Mr Justice Mellor confirmed that ASD clearly falls within one of the categories set out in paragraph 4 of the practice direction.

Finally, Mr Justice Mellor referred to the Advocates Toolkit 3 and his obligation to ensure a fair trial. In this case, he did not consider it a satisfactory answer to say the trial judge can be assumed to be able to conduct a fair trial simply through observation of the witness. In particular, both Fazel’s report and the Advocates Toolkit 3 make it clear that one may not appreciate (fully or at all) the effects of a witness’s vulnerability without some expert guidance.

The decision

Mr Justice Mellor granted permission to adduce Fazel’s expert report and allowed COPA its own expert. He emphasised that he was not reaching any conclusions that any adjustments were necessary and said it was premature to do so without giving COPA the opportunity to serve an expert report in response to that of Fazel. He also stated that this was an exceptional case where it was proportionate and fair for the parties to incur the cost of expert evidence. He may have had an eye on the floodgates when he said ‘in the vast majority of cases, one would expect suitable adjustments to be agreed’.

While Mr Justice Mellor was keen to emphasise that expert evidence would not be necessary in every case involving vulnerable witnesses, it is important that we are mindful of the potential impact of neurodiversity on the ability to give evidence and what accommodations we ought to be seeking.

Nikki Edwards is vice president of the London Solicitors Litigation Association and a partner at Howard Kennedy LLP