Johnston v Financial Ombudsman Service [2025] EWCA Civ 551 is a case with a particularly complicated procedural history, but for present purposes the critical questions for the Court of Appeal were: (1) whether Mr Johnston lacked litigation capacity at the material times; and (2) whether, if he did lack that capacity, he could have brought proceedings against the Financial Ombudsman Service at all.
In relation to the first question, Baker LJ gave a very helpful recap of the law relating to litigation capacity / capacity to conduct proceedings as it stands in light of the decision of the Supreme Court in A Local Authority v JB [2021] UKSC 52, [2022] AC 1322, with its focus on (1) starting with identifying the decision, and the relevant information; and (2) only if the person is unable to understand / retain / use and weigh the relevant information or communicate their decision, moving on to ask why. He continued:
39. There are three further relevant general principles, identified in my judgment in A Local Authority v P [2018] EWCOP 10at paragraph 15, cited by Lewis LJ in his judgment in Cannon v Bar Standards Board [2023] EWCA Civ 278 (considered below). First:
“Capacity is both issue-specific and time-specific. A person may have capacity in respect of certain matters but not in relation to other matters. Equally, a person may have capacity at one time and not at another. The question is whether at the date on which the court is considering the question the person lacks capacity in question.”
Secondly,
“In assessing the question of capacity, the court must consider all the relevant evidence. Clearly, the opinion of an independently instructed expert will be likely to be of very considerable importance, but as Charles J observed in A County Council v KD and L [2005] EWHC 144 (Fam) [2005] 1 FLR 851 at paras 39 and 44, “it is important to remember (i) that the roles of the court and the expert are distinct and (ii) it is the court that is in the position to weigh the expert evidence against its findings on the other evidence… the judge must always remember that he or she is the person who makes the final decision.”
Thirdly,
“The court must avoid the “protection imperative” – the danger that the court, that all professionals involved with treating and helping P, may feel drawn towards an outcome that is more protective of her and fail to carry out an assessment of capacity that is detached and objective: CC v KK [2012] EWHC 2136 (COP).”
40. Prior to the implementation of the MCA 2005, the leading common law authority on capacity to conduct proceedings was Masterman-Lister v Brutton and Co and another[2002] EWCA Civ 1889 in which Chadwick LJ said, at paragraph 75:
“For the purposes of … CPR 21 – the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law – whether substantive or procedural – should require the interposition of a next friend or guardian ad litem (or, as such a person is now described in the Civil Procedure Rules, a litigation friend).”
41. An example of the application of the MCA 2005 principles to a decision whether a person lacks capacity to conduct litigation is the judgment of Burnett J (as he then was) in V v R [2011] EWHC 822 (QB). Having set out the statutory provisions, the judge said (at paragraph 10):
“It is common ground in these proceedings that the claimant suffers from an impairment or disturbance in the functioning of the mind or brain. The question is whether she is unable to make decisions for herself in connection with the litigation. In considering that broad question, the statutory scheme requires the presumption of capacity to be displaced on the balance of probabilities. The principles in section 1 distinguish capacity to make a decision from the wisdom of a decision made. The principles also require that all practicable steps are taken to help the person concerned make the relevant decision. The underlying policy of the Act is to avoid concluding that incapacity is established unless, after careful enquiry, it is necessary to do so. That is underpinned by the various cautions found in the Act relating to age, appearance and behaviour, by the requirement to convey information in a way appropriate to the individual’s circumstances, and by the recognition that retention of information for but a short period may be sufficient for the purposes of establishing capacity. The underlying policy of the Act is unsurprising and reflects the earlier common law approach very substantially, given that the finding of incapacity in any environment substantially curtails the individual’s right of action. In the context of litigation, a finding of incapacity curtails the right of unimpeded access to the law.”
42. In that case, having carefully considered the medical and other evidence, Burnett J concluded (paragraph 34) that the claimant had “difficulties rather than a straightforward inability to weigh the evidence and make relevant decisions”. He concluded that those difficulties were “capable of being ameliorated, if not entirely overcome, by the careful and structured support that the statute contemplates”. In those circumstances, he was not satisfied on the balance of probabilities, that the claimant was unable to use and weigh information as part of the process of making litigation decisions. He therefore refused the application for a declaration that she lacked capacity to conduct the litigation.
43. In this case, the Court is considering Mr Johnston’s capacity over a number of years. In Public Guardian v RI and Others [2022] EWCOP 22, a case concerning a donor’s capacity to execute a lasting power of attorney, Poole J observed (at paragraph 27):
“… Ideally, where there is a dispute about past capacity which the court is required to determine, it would be helpful to have evidence as to,
-
-
- The certificate provider’s experience …
- Evidence from carers and family members …
- Medical evidence, capacity assessments, assessments for benefits, records from carers or activity centres, or other professional evidence roughly contemporaneous with the relevant date …
- An assessment by a suitably qualified and experienced person of P’s current capacity and reasoned opinion as to their capacity … at the relevant time, such opinion being informed by review of relevant medical records, contemporaneous assessments, and the evidence from carers and family members.”
-
44. In Cannon v Bar Standards Board [2023] EWCA Civ 278, the appellant sought to appeal against findings of a professional disciplinary tribunal, contending amongst other grounds that she lacked capacity to conduct litigation at the time of the tribunal proceedings. Lewis LJ, in a judgment with which the rest of the Court agreed, noted (at paragraph 25) that the psychiatric reports on which the appellant relied did not address the test, or all the relevant factors, for assessing capacity, that the psychiatrist had access to some but not all of the appellant’s medical records, and had not addressed the various actions the appellant had undertaken in relation to the disciplinary proceedings in order to consider whether she was able to understand, retain use, or weigh the relevant information. The psychiatrist’s opinion amounted simply to an assertion that because the appellant had post-traumatic stress disorder, she lacked capacity. Lewis LJ concluded (paragraph 27) that the medical evidence did “not itself provide a proper evidential basis for rebutting the presumption that the appellant had capacity to take the decisions necessary to enable her to participate” in the proceedings. He added, at paragraph 34, that there was a difference between questions of capacity and the fairness of proceedings and that a party may have vulnerabilities arising from underlying mental health conditions which required adjustments to ensure that proceedings are fair. In that case, however, there had been no challenge to the fairness of the proceedings before the tribunal.
Baker LJ was not impressed with the evidence put before the Court of Appeal concerning Mr Johnston’s litigation capacity. The evidence was put forward by a consultant psychiatrist, Dr Attavar, who also signed a certificate that he had lacked capacity to conduct proceedings since 2010. Baker LJ was “wholly unpersuaded” (paragraph 58) that this was the case.
59. There are a number of deficiencies and difficulties in the evidence about capacity presented to this Court. A preliminary point is that none of the reports complies fully with the requirements for expert evidence in CPR rule 35.10 and Practice Direction 35. In addition, and more importantly, there are deficiencies in the evidence of Dr Attavar on which Mr Johnston relies to rebut the presumption of capacity. As Ms Morris KC pointed out on behalf of the FOS, these deficiencies are similar to those identified in Cannon v Bar Standards Board. In some respects, they are even more substantial.
60. First, there are deficiencies in the manner in which Dr Attavar was instructed to conduct the assessment. As Ms Morris pointed out, there is no letter of instruction either for the report produced in July 2023 or for the certificate signed in September 2023. Furthermore, it seems from the July report that Dr Attavar only had access to some of the relevant medical records. There is nothing in the September certificate to suggest that, before signing the certificate, he had an opportunity for a comprehensive review of the records recommended by Poole J in Public Guardian v RI and Others.
61. Secondly, the certificate signed by Dr Attavar failed to identify at all the proceedings in respect of which he was certifying that Mr Johnston lacked capacity. Mr Johnston has engaged in a number of proceedings – according to Dr Rao’s September report, he spoke of being involved in sixteen court cases. The question of capacity to conduct proceedings depends in part on the proceedings involved. Whether or not a litigant is able to understand, retain, and use or weigh the information relevant to the decision may vary depending on the decision and the information involved. Dr Attavar’s certificate does not identify which of the various cases in which Mr Johnston was apparently involved is covered by the certificate.
62. Thirdly, the certificate does not explain how Mr Johnston’s mental disorders affected his capacity to understand, retain, and use or weigh the information so as to leave him unable to make decisions and conduct the proceedings. Some of the comments in the certificate amount to no more than a repetition of the diagnosis with no or no sufficient explanation of how the disorders affect his abilities. Indeed, it is unclear from the certificate whether Dr Attavar was in fact saying that Mr Johnston was unable to understand, retain, and use or weigh the information. In some respects, the text inserted in the boxes in Part 2 suggested that his abilities depended on whether he was supported and provided with reasonable adjustments.
63. Fourthly, the certificate referred to the earlier report prepared a few weeks prior to the certificate in July 2023. The conclusion in that report, however, was that, whilst Mr Johnston did not have capacity to conduct legal proceedings by himself without a legal representative, he did have the capacity to instruct a lawyer to act for him in his legal affairs.
64. Fifthly, the bald assertion in the certificate that Mr Johnston has been unable to conduct litigation since 2010 was unsupported by any analysis or explanation. An assertion that he had lacked capacity for thirteen years required some explanation, by reference to the evidence considered by Dr Attavar who had not met Mr Johnston before July 2023. The certificate contained no such explanation, and the July letter to which it referred contained only a brief summary of extracts from the medical records which had been supplied by Mr Johnston himself. There was, for example, no reference to anything between 2010 and 2016. In those circumstances, it is difficult to understand how Dr Attavar was able to say that Mr Johnston had lacked capacity since 2010.
Dr Attavar’s opinion was also not supported by the subsequent opinion of another consultant psychiatrist, a Dr Rao:
65. […] Less than three weeks after Dr Attavar saw Mr Johnston and signed a certificate that he lacked capacity to conduct unspecified proceedings and had done so since 2010, Dr Rao assessed him and concluded that he needed “reasonable adjustments … in the form of clear verbal communication and allowing him sufficient time to understand while sending written material.” It is true that Dr Rao was not at that stage asked to assess his capacity, but there is nothing in his report to support Dr Attavar’s conclusion. In March 2024, Dr Rao conducted a capacity assessment and reached the clear conclusion that Mr Johnston did not lack capacity to conduct any of the various proceedings in which he was engaged. It was Dr Rao’s view that Mr Johnston needed a range of reasonable adjustments which he spelt out in his report, but not that he lacked capacity. In my view, Dr Rao’s clear and well-presented opinion is to be preferred to the opinion expressed by Dr Attavar.
As Baker LJ reminded himself:
66. The presumption of capacity is a fundamental principle in our law. As Burnett J observed in V v R, “the underlying policy of the Act is to avoid concluding that incapacity is established unless, after careful enquiry, it is necessary to do so”. Furthermore, “in the context of litigation, a finding of incapacity curtails the right of unimpeded access to the law” – a further fundamental principle. The evidence adduced on this appeal comes nowhere near rebutting the presumption.
67. Accordingly, I conclude that Mr Johnston has failed to prove that he lacked capacity at any stage in these proceedings. He was therefore not a “protected party” under CPR rule 21.1. I would therefore dismiss the appeal on the ground for which permission has been granted.
As to the second question, Baker LJ noted that, had Mr Johnston made out his case that he lacked capacity to conduct proceedings since 2010:
57. […] the effect would in fact be more far reaching than contended for by Mr Matovu. For under CPR rule 21.3(4), “any step taken before a… protected party has a litigation friend has no effect unless the court orders otherwise”. If Mr Johnston lacked capacity for the period of 13 years asserted by Dr Attavar, he had no capacity to start the proceedings against the FOS when he filed the claim in December 2020, with the result that every step in the proceedings from the filing of the claim onwards would have no effect unless the court ordered otherwise. No application has been made for the court to make such an order.
Coulson LJ gave a short concurring judgment:
79. One of the oddities of this case is that, unlike all the authorities to which we were referred, this was a situation where a claimant – not a defendant – sought to argue that he did not have capacity during the relevant period. Since, on his case, that period extended back to 2010, the effect of his argument appeared to be that not only the intervening court orders, but the entire proceedings (which he started), were a nullity. Mr Matovu appeared to accept that point during the course of argument.
80. Entirely properly, Ms Morris KC, on behalf of the respondent, drew our attention to CPR 21.3. That provides:
“21.3.
(1) This rule does not apply where the court has made an order under rule 21.2(3).
(2) A person may not, without the court’s permission —
(a)make an application against a child or protected party before proceedings have started; or
(b)take any step in proceedings except—
(i)issuing and serving a claim form; or
(ii)applying for the appointment of a litigation friend under rule 21.6, until the child or protected party has a litigation friend.”
81. Ms Morris said that, on one reading of r.21.3(2)(b)(i), a person who did not have capacity could commence proceedings by issuing a claim form, even if the lack of capacity invalidated all the subsequent court orders.
82. I do not agree with that interpretation of the rule. In my judgment, r.21.3(2) is concerned with the position where a child or protected party is a defendant. It is designed to give the child or protected party proper protection once they have been served with a claim form. The first two sub-rules of r.21.3 are not concerned with the position where a party without capacity wishes to bring a claim in their own name. I note that, at paragraph 21.3.1, the learned editors of this part of the White Book take the same view as to the scope of the rule.
83. That must also be right as a matter of common sense. A child of 8 does not have capacity, so could not validly commence proceedings on his or her own. Furthermore, if a lack of capacity invalidates orders made by a court at a time when it was not appreciated that the party in question did not have capacity, then it would be absurd if the same rule did not apply to the commencement of the proceedings themselves, if those proceedings had been commenced by somebody who lacked capacity.
In her two sentence concurring judgment, Asplin LJ expressly identified her agreement with Coulson LJ’s interpretation of CPR Part 21.
Comment
The review of the law relating to capacity to conduct proceedings (or litigation capacity as it is often called) by Baker LJ is extremely useful as a stock take. The – detailed – dissection of the failings of the evidence put forward to support Mr Johnston’s incapacity is also very helpful as a case-study in what not to do, both in terms of the process of assessment, and in terms of writing it up (in which regard, more broadly, it may be useful to see our updated guidance note).
In terms of the construction of CPR r.21.3, Coulson LJ’s construction must be correct, but it does reinforce what very practical problems can stand in the way of a person with impaired decision-making capacity seeking to bring proceedings. There is clearly a balance to be struck, but Strasbourg has recently reinforced how vital it is to make sure that the impairment of decision-making capacity should not stand as an improper bar to access to justice. If and when further steps are taken (as I hope that they will) to respond to the report of the Civil Justice Council on The Procedure for Determining Mental Capacity in Civil Proceedings, I would very much hope that thought can be given about whether CPR r.21.3 strikes the right balance.
