Capacity in civil proceedings consultation – help wanted

The Civil Justice Council has published a consultation on Procedure for Determining Mental Capacity in Civil Proceedings which will run for 3 months until 17 March 2024 at 23:59. The consultation paper can be found online here.

As the Working Group on the project, including me, has identified, the problem is that:

Part 21 of the Civil Procedure Rules (CPR) sets out the procedure in relation to ‘protected parties’. A protected party is defined in CPR 21.1(1) as ‘a party who lacks capacity within the meaning of the Mental Capacity Act 2005 (MCA) to conduct the proceedings’.

CPR 21 provides that:

a. A protected party must have a litigation friend to conduct proceedings on their behalf;

b. Any settlement of a claim made in relation to a protected party must be approved by the court;

c. If during proceedings a party lacks capacity to continue to conduct the proceedings no party may take any further step in the proceedings without the court’s permission until the protected party has a litigation friend; and

d. Any step taken before a protected party has a litigation friend has no effect unless the court orders otherwise.

CPR 21 also sets out the procedure for the appointment of a litigation friend, both by way of the filing of a certificate of suitability by the litigation friend, and by application to the court.

All of these provisions are predicated on it being established that a party lacks capacity and is therefore a protected party. The CPR makes no provision for cases in which a party’s capacity is in doubt: how the issue is to be identified, investigated or resolved. The provisions regarding the appointment of a litigation friend also assume that there is a person suitable, able and willing to undertake the role.

The issue was identified more than 20 years ago in Masterman-Lister v Brutton2 (“Masterman-Lister”) when Kennedy LJ observed that neither CPR 21 (nor the preceding provision, RSC Order 80) made any provision for “a judicial determination of the question whether or not capacity exists”. Kennedy LJ recommended that the Rules Committee consider the issue, but held that meanwhile: “courts should always, as a matter of practice, at the first convenient opportunity, investigate the question of capacity whenever there is any reason to suspect that it may be absent …”

The Consultation Paper briefly summarises the discussions of the working group, the main issues identified and some provisional proposals for change. Not all of the proposals were agreed by the whole working group and all will be revisited in light of the consultation responses.

The CJC wishes to hear from a wide range of consultees, not only from people with significant experience of issues of mental incapacity and/or the civil justice system but also from those with more limited experience of specific issues or procedures.

Responses should be submitted by PDF or word document to Please use the cover sheet available here.

As part of the consultation process, there will be a seminar in early 2024. Please fill in the following form to register your interest:

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