At its July 2022 meeting, the Civil Justice Council (CJC) approved the creation of a working group to look at a procedure for determining mental capacity in civil proceedings. The working group (of which I am a member) has now published its final report. I reproduce the executive summary below (footnotes omitted) although this is no substitute for reading the whole report:
1.1 The issue of whether an adult party to court proceedings has the mental capacity to conduct the proceedings (“litigation capacity”) is one of fundamental importance. Under the Civil Procedure Rules (CPR) a person who lacks litigation capacity is a ‘protected party’ and must have a ‘litigation friend’ appointed to conduct the litigation on their behalf. If it is wrongly decided that the party lacks capacity, the appointment of a litigation friend to take decisions on their behalf will represent a significant infringement of their personal autonomy. If it is wrongly decided that the party has capacity and can conduct the proceedings for themselves, they may be denied meaningful access to justice.
1.2 Although CPR Part 21 sets out the procedure applying to protected parties, neither the CPR nor its Practice Directions (PDs) set out any procedure for determining whether a party lacks litigation capacity. The Court of Appeal recommended more than 20 years ago that consideration be given to addressing this gap, but that does not appear to have happened and no action has been taken.
1.3 Where the party whose litigation capacity is in doubt is legally represented, the issue can usually be resolved without the involvement of the court. The Working Group does not seek to propose any changes in relation to such cases.
1.4 However, in many other cases the issue can be much more difficult to resolve and will require the involvement of the court. Such cases include unrepresented parties and represented parties who dispute the suggestion that they lack capacity and/or will not cooperate with any process of assessment. In the absence of any clear provision in the CPR, for many years judges, parties and legal representatives have been forced to come up with ad hoc solutions. This has led to inefficiency, inconsistency of practice, and actions being taken without a clear legal basis.
1.5 One ‘ad hoc’ solution that many respondents to the consultation referred to was the practice of having an ‘informal’ litigation friend in place prior to the issuing of a claim. It seems to be common for arrangements to be made for such a person to assist a claimant and for this person to attend hearings to approve settlements. Given the extent of work undertaken prior to issue, often resulting in settlement, particularly in personal injury and clinical negligence claims, the view was expressed that the appointments of litigation friends prior to the issuing of a claim be formalised. The CJC supports this.
1.6 It is the strong view of the Working Group, and the almost unanimous view of the judges and practitioners whom it consulted, that there should be clear provision and guidance on the procedure for the determination of issues of litigation capacity. This should principally be set out in the CPR and/or a new PD, to ensure that there is a single, easily identifiable, and authoritative source. In relation to some of the issues identified, other measures may be needed, such as professional guidance, judicial training and even legislation.
1.7 Given the huge diversity of civil cases and the wide range of issues that may arise, a single procedure, to be applied in all cases, would be inappropriate. Instead, courts should be provided with a ‘menu of options’ together with guidance as to the relevant principles to be applied, to ensure an appropriate approach can be adopted in each case, giving effect to the overriding objective.
The key principles and recommendations can be summarised as follows:
a. In dealing with issues of capacity, the court must take into account, in particular (i) the fundamental importance of the issue; (ii) the right for those with capacity to conduct their own litigation; (iii) the need to protect the interests of the party who may lack capacity, at a time when they are unable to protect their own interests; (iv) the need to protect the interests of other parties to the substantive proceedings; and (v) proportionality.
b. The court’s role must be a quasi-inquisitorial one, in which the court is responsible for ensuring that it has the evidence it considers necessary to determine the issue, albeit that the work of gathering such evidence will necessarily be delegated to others.
c. Issues of litigation capacity should be identified and determined at the first available opportunity.
d. Although the presumption of capacity is an important starting point, it must not be used to avoid proper determination of the issue where it arises, even where it may be difficult to obtain evidence.
e. The determination of a party’s current litigation capacity is not generally one in which other parties have a right to be heard, although in some cases it may be so inextricably interlinked with the substantive issues that they must be given a right to be heard.
f. However, all parties (under the overriding objective) and their legal representatives (as part of their professional ethical duties) have a responsibility to assist the court in identifying and determining issues of litigation capacity.
g. Where the party whose capacity is in doubt is legally represented, the legal representatives should carry out the work of investigating the issue. In other cases, a range of options should be available to courts for the delegation of this work. This would include existing options and may also require the introduction of further options, based on procedures currently available in the Court of Protection (COP).
h. There should be a clear power for the court to order disclosure of evidence relevant to the issue of litigation capacity, together with guidance to ensure that this is only used where it is necessary and proportionate.
i. Generally, once the court has decided that an issue of litigation capacity requires determination, it should direct that no further steps be taken in the proceedings, and that existing orders be stayed, pending determination of the issue. However, this should be subject to a power to order otherwise, based on a ‘balance of harm’ approach.
j. In relation to hearings to determine the issue of a party’s litigation capacity, the court should consider what measures are necessary to protect the party’s rights to privacy, confidentiality, and legal professional privilege. Open justice and the need for transparency are of crucial importance in civil court proceedings. However, in order to protect legal professional privilege, confidentiality and privacy, the court should have the power to (i) hold all or part of the hearing in private; (ii) exclude other parties to the substantive proceedings; (iii) make anonymity orders and/or impose reporting restrictions, where those measures are unavoidably necessary.
k. A party who is found to lack litigation capacity must have a right of appeal, which may require modifications to usual appeal procedures to ensure that it is effective.
l. Proper funding must be made available for the investigation and determination of issues of litigation capacity, including the creation of a central fund of last resort.
1.9 Ultimately, this report is only a first step in what may well be a long journey to achieving a system for determining issues of litigation capacity which is fit for purpose. Some improvements can be made quickly, simply and at little or no cost. Others will require further detailed consideration, further funding and/or legislative intervention and so may take some time. However, given the importance of the issue and the current absence of provision, it is not an option to simply ignore the issue.
