Questions sometimes arise as to whether a party in proceedings has the mental capacity to conduct litigation. Where a party lacks such capacity, they are a ‘protected’ under CPR Part 21 and must act through a litigation friend. If someone such as a family friend cannot act as a litigation friend, then one may need to contact the Official Solicitor to act a litigation friend. The issue is critical because the court generally cannot make substantive orders until a litigation friend has been appointed.
I have faced this issue a few times in housing matters and, in particular, a recent committal hearing where those instructing me raised the question of capacity. After a conference with their client, I was satisfied that there was a question about his capacity. Now he has the opportunity to have his capacity assessed by an appropriate expert.
The position of law on capacity
A protected party is someone who lacks capacity to conduct legal proceedings within the meaning of the Mental Capacity Act 2005 (MCA 2005). A protected party must have a litigation friend to act on their behalf, and the court has no general power to dispense with this requirement. Until a litigation friend is appointed, only limited procedural steps can be taken without the court’s permission. Any steps taken before appointment may be ineffective unless the court orders otherwise. Consequently, a possession order cannot normally be made against a protected party until proper representation is in place.
The procedural rules assume that the court knows whether a party is a protected party, but they provide little guidance on how a dispute about capacity should be resolved. The MCA 2005 sets out the legal test for capacity but not the process for determining capacity in civil litigation. This creates practical difficulties for judges and practitioners, particularly where a party may:-
- deny there is any issue with their capacity
- refuse to undergo assessment; or
- lacks insight into the difficulties affecting their decision-making.
Under section 2(1) MCA 2005, a person lacks capacity if, at the relevant time, they are unable to make a decision because of an impairment of, or disturbance in the functioning of, the mind or brain. Two elements must therefore be established:
- An impairment or disturbance of the mind or brain; and
- An inability to make the relevant decision because of that impairment or disturbance.
A person is unable to make a decision if they cannot:
- understand relevant information;
- retain that information;
- use or weigh that information as part of the decision-making process; or
- communicate their decision.
It is those key factors that we, as practitioners, may identify but cannot possibly make any determination about because they are outside our area of specialism.
Capacity to conduct litigation
The Supreme Court in Dunhill v Burgin confirmed that the issue is not whether the claimant was capable of understanding and making decisions within the confines of the case as it happened to be presented by her lawyers. Rather, the court must determine whether the claimant had the capacity to conduct the underlying claim or cause of action that was genuinely available to her. Capacity is therefore assessed by reference to the litigation that should properly have been pursued, not simply the narrower or inaccurately formulated case advanced on her behalf.
Capacity is therefore:
- decision-specific and issue-specific;
- assessed by reference to the proceedings as a whole; and
- dependent on the complexity of the issues involved.
A person may have sufficient capacity to conduct straightforward litigation but lack capacity to manage a more complex case.
What to look out for as indicators that capacity may be an issue
A potential capacity issue should be considered where there is evidence that the party struggles not merely to understand information, but to use and weigh it rationally. Relevant indicators may include:
- delusional, paranoid or irrational beliefs affecting their approach to the litigation;
- obsessive or compulsive behaviours.
- a complete lack of insight into behaviour that has led to the proceedings;
- an inability to understand the strengths and weaknesses of the case;
- difficulty giving coherent instructions;
- an inability to evaluate settlement proposals or compromises; or
- an inability to appreciate the consequences of complying with, or breaching Court orders.
There are, of course, indicators and do not equate to diagnoses of absence of capacity.
The fact that a party can understand information at an intellectual level does not necessarily establish capacity. They may still lack capacity if they cannot properly weigh that information because of a mental impairment or disturbance.
Information
Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.
