Cheshire East

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Litigation capacity under the spotlight

Predeterminiation iStock 000016468646Small 146x219The Court of Protection team at 39 Essex Chambers examine a recent case where the law relating to litigation capacity was applied in practice.

The case of London Borough of Brent v (1) SL (2) NL [2017] EWCOP 5 (DJ Glentworth) concerned SL, a 60-year-old woman with a diagnosis of schizophrenia and obsessive compulsive disorder. The central issue in this case was whether SL had capacity to conduct proceedings in the Court of Protection in which she objected to the deprivation of her liberty in supported living accommodation.

There were three capacity assessments before the court:

  • A COP3 capacity assessment which concluded that SL was unable to understand or weigh up all the relevant information in relation to her own needs, both mental and physical, or to weigh up the pros and cons of different types of accommodation as well as treatment and care in the community;
  • A section 49 report which concluded that SL lacked capacity to conduct these proceedings because she did not understand the basis of the proceedings as she was preoccupied by the fact that she preferred to live at home;
  • An independent expert report where the expert found it difficult to reach a conclusion about SL’s litigation capacity but, if pressed, stated that he thought that she did not have capacity in that area.

District Judge Glentworth set out the relevant law in this area and considered that she had sufficient information in the reports to address the question of SL’s litigation capacity without hearing oral evidence. The independent expert was clear in his diagnosis of SL which was accepted by the court. The independent expert was also clear that SL lacked capacity in relation to the issues which were the subject matter of the application namely her residence and care. The independent expert also concluded that SL did not have capacity to manage her property and affairs and that conclusion was accepted by the court.

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In relation to litigation capacity, the independent expert and the court were mindful of the decision in Sheffield City Council v E [2004] EWHC 2808 where Munby J (as he then was) held that cases where someone had litigation capacity whilst lacking subject matter capacity are likely to be very rare. The expert’s view was that the issue of SL’s litigation capacity depended on the level of detail which the court considered SL would be expected to understand in making the kinds of decisions she would need to make in the course of litigation. If it was sufficient for SL to understand the matter in broad terms then he thought that SL had litigation capacity. If SL was required to have a more detailed understanding of the various potential outcomes and their consequences, then SL lacked litigation capacity.

Having considered the evidence in the reports, the judge was satisfied that SL could understand the information relevant to the proceedings but was not satisfied that she was able to use and weigh the relevant information to make decisions and give instructions in relations to matters which were integral to the process of litigation.

Comment

This case does not lay down any new principles of law but is a useful example of how the law relating to litigation capacity was applied in practice. In analysing the independent expert’s report, the court rejected the notion that it was sufficient for SL to understand the matter in broad terms in order to have litigation capacity. Rather what was required was for SL to use and weigh the relevant information to make decisions and give instructions in relation to matters which were integral to the process of litigation. It is a slight pity that the judgment does not spell out in more detail what the matters “integral to the process of litigation” were considered to be.

Practitioners may also wish to take note of the judge’s comments on the letter of instruction that went to the independent expert. The letter of instruction, as we understand it, was modelled on the standard letter emanating from the Official Solicitor referred to an extract from the case of The NHS Trust v Miss T [2004] EWHC 2195. However, neither the expert nor the court could locate a copy of that case under that citation or by a more generalised search (although the case is referred to in the judgment of Munby J in the E case). Given the difficulty locating the case, the judge suggested that it would be appropriate for those responsible for the letter of instruction to consider whether reference to it should be included in future instructions.

This article was written by the Court of Protection team at 39 Essex Chambers.

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