The Capacity to Litigate
The capacity to litigate refers to a person’s ability to understand, engage in, or follow litigation proceedings. A person lacks the capacity to litigate if they lack mental capacity under the terms of the Mental Capacity Act 2005 (MCA). However, litigation capacity is slightly more complicated, because it refers not only to a person’s ability to conduct their own proceedings, but also to their ability to conduct proceedings through solicitors. Issues of litigation capacity may arise in the course of any legal proceedings, but they are probably most common in circumstances where somebody is making a personal injury claim in the wake of a traumatic brain injury. In the context of such a claim, the claimant will be assessed for their capacity to litigate, as well as for their capacity to manage any award given to them by the court.
In this post, we look at the legal provisions for people who lack litigation capacity, and we outline what happens when a medical expert is asked to provide a capacity assessment. Finally, we examine the issue of litigation capacity in a recent case study.
The Law in Relation to Litigation Capacity
Provisions regarding litigation capacity are detailed in Part 21 of the Civil Procedure Rules. Section 21.1 of these rules identifies a “protected party” as one “who lacks capacity to conduct the proceedings” necessary to litigate. This is someone who lacks capacity as it is defined by the MCA. In other words, this is someone who, at the material time of the litigation, has an impairment or disturbance of the brain that makes them unable to understand, retain, weigh, and communicate information relevant to the proceedings.
If the person in question is judged not to have the capacity to litigate, then they will be appointed with a litigation friend. This is somebody who is appointed to make decisions on behalf of the protected party in relation to the court proceedings. A litigation friend can be a parent, guardian, family member, or friend. It can also be a solicitor, a professional advocate (such as an Independent Mental Capacity Advocate), a person appointed as a deputy by the Court of Protection, or an attorney with a lasting power of attorney. A person appointed as a litigation friend will have to attend court if there is a hearing, but they cannot act as the protected party’s lawyer.
Experts Assessing Capacity to Litigate
If a person’s capacity to litigate is in doubt, a medical expert such as a Consultant Psychiatrist will be instructed to provide an assessment of their capacity. In this case, the expert will assess the person’s capacity under the terms of the MCA, but they will also focus on the following questions:
Is the person in question capable of understanding the issues about which they will most likely have to make decisions in the course of the proceedings? In relation to this, the person in question does not have to be able to understand the issues on their own (most laypeople would struggle with this), but they must be able to understand them once they have been explained to them by a legal advisor or an expert.
Does the person in question have a basic understanding of how litigation and court proceedings work? In other words, do they understand the legal issues involved and the circumstances that have given rise to the case? Importantly, the person must be able to understand the entirety of the legal proceedings, not just the individual decisions within those proceedings. This differs slightly from the more general provisions of the MCA, which allow for the fact that persons may have the capacity to make some decisions but not others. In order to have the capacity to litigate, a person must understand all of the decisions and processes involved in the court proceedings (again, assuming that these have been explained to them by an expert).
Relatedly, does the person possess the capacity to litigate in a complex case? Someone may have the capacity to defend a relatively small and simple case, but they may nevertheless lack the capacity to litigate as part of a more complicated dispute.
Does the person understand, at least in general terms, the vitiating factor or factors upon which they may have to rely during the course of the proceedings? Can they weigh up the arguments for and against the litigation?
In the event that a person is found to possess the capacity to litigate, the medical expert will sign a Certificate of Capacity to Conduct Proceedings, which typically takes the form of a Court of Protection Form 3 Assessment of Capacity. Otherwise, a litigation friend will be appointed.
A Cautionary Case Study
Clearly, one of the most important factors to bear in mind when it comes to issues of litigation capacity is the need to assess capacity at the earliest possible stage of proceedings. Otherwise, damaging and potentially irreversible steps may be taken when the relevant party lacks the capacity to consent to them. Not only could this be harmful for the person in question, but it could also introduce a need for re-litigation.
On this point, a recent case highlights the importance of clarity about the so-called “presumption of capacity,” outlined in the MCA. This presumption is derived from Section 1.2. of the MCA, which states that “a person must be assumed to have capacity unless it is established that he lacks capacity.” In a recent case (Mr and Mrs Z v Kent County, 2018), a person was not assessed for their capacity to litigate despite the fact that they suffered from alcoholism and a well-documented personality disorder. The presumption of capacity was adopted because the person in question was apparently able to make decisions at the material time when they were being made. However, the fact that prior evidence suggested that the person might have suffered from diminished capacity in the past should have suggested the need to conduct an assessment prior to proceeding with the litigation. As happened, the person was later found to have lacked capacity, leading to a situation that “should never have arisen.” In their overall commentary on the case, the Judge issued a damning warning on this matter, stating:
One significant intention [of the presumption of capacity] is to prevent inaccurately assuming lack of capacity in apparently vulnerable individuals without being properly established on evidence. It is emphatically not there to obviate an examination of such an issue. Nor can it have been Parliament’s intention to place a vulnerable person in danger of their lack of capacity being overlooked at the expense of their rights by a slack reliance on this presumption.
Clearly, this shows the importance of carrying out an assessment whenever there is any doubt about a person’s capacity to litigate. If the person is adjudged by a medical expert to possess capacity, then proceedings can continue as before. The presumption of capacity, however, should not be an excuse for not considering an assessment.
Summary
A person who is unable to follow, engage in, and understand litigation proceedings is said to lack the capacity to litigate. Such a person is protected under the terms of the MCA and Part 21 of the Civil Procedure Rules. They will be appointed with a litigation friend. In order to assess a person’s capacity to litigate, a medical expert will consider whether they lack capacity under the MCA, whilst also addressing the following questions: can the person understand the decisions they will have to make during the proceedings? Do they understand how litigation works? Can they litigate in a complex case? Do they understand the vitiating factors that they may have to rely on during the court proceedings? Recent cases show that it is important that, where necessary, a capacity assessment be carried out the earliest possible stage of proceedings. The presumption of capacity should not obviate the need for such an assessment.
This post is provided for general information purposes and is not intended to cover every aspect of the topics with which it deals. It does not constitute medical, legal, or professional advice, nor is it necessarily an endorsement of the views of Professor Elliott, the U.K. Centre for Medico-Legal Studies, its employees, or its affiliates. Though we aim to ensure that all information is accurate at the time of posting, we make no representations, warranties or guarantees, whether express or implied, that the content in the post is complete or up to date.