Capacity and civil proceedings

Holly Tibbitts examines new recommendations from a working group of the Civil Justice Council on determining capacity to litigate in civil proceedings.

The Civil Justice Council has this month published its report on The Procedure for Determining Mental Capacity in Civil Proceedings, with recommendations to codify and overhaul the process for determining litigation capacity in the civil courts. The report is particularly relevant for cases where there is doubt about the capacity of a party who is not legally represented, or where there is a dispute between a party and their legal representatives about capacity. It recognises these are issues that the courts and parties have previously had to address on an ad hoc basis, which has led to inconsistency. The report grapples with the problem and makes recommendations about the correct approach when these issues arise.    

Despite the fundamental importance of determining whether a party has litigation capacity, there is very little guidance for judges and practitioners as to how this issue should be approached. The CJC recommends that alongside the rules about how proceedings should be conducted when a party lacks capacity, CPR 21 and/or its Practice Direction should be amended to set out a clear procedure for determining whether a party has litigation capacity. 

The Working Group acknowledge that, given the diversity of civil claims, a one size fits all approach is unlikely to be appropriate. Instead, it recommends that the courts are provided with a ‘menu of options’ that can be used to investigate and determine the issue of capacity, which can be selected depending on the circumstances and requirements of the given case.  

In most cases where a party is legally represented there will be no issue as to capacity. If a party’s legal representatives have a doubt about their capacity, they are under a duty to resolve the issue as quickly as possible. The presumption of capacity is not a reason to avoid taking responsibility for assessing and determining capacity at an early stage. It is suggested that this should be highlighted in the Pre-Action Protocols. If investigations suggest that the party does not have capacity and the party accepts that, then that is likely to be the end of the matter. 

Capacity is more likely to be an issue requiring judicial input in cases where a party is not legally represented, or where there is a dispute between a party and their legal representatives about their capacity status. The CJC is clear that the legal representatives for other parties are under a duty to assist the court in determining issues of capacity, which may be particularly relevant when acting against a litigant in person. It recommends that the duty on another party’s legal representatives be included within CPR. 

The CJC recommends that there should be a single clear formulation of the threshold for triggering the duty of parties and legal representatives to raise an issue as to a party’s litigation capacity. It proposes that the threshold test should be one of “reasonable grounds to believe that the party may lack litigation capacity”.

There may nonetheless remain uncertainty about a party’s litigation capacity, for example because the party will not cooperate in a capacity assessment, there is no funding for a capacity assessment, or a party disputes the assessment of their capacity.

If the court needs to become involved, the CJC recommends that the judge should act in a quasi-judicial capacity and take responsibility for ensuring it has the necessary information to determine the issue of capacity, albeit the work of gathering that information will necessarily be delegated to others, usually that party’s legal representative. It is not appropriate for an opposing party to provide anything more than limited administrative assistance to the court in relation to this issue. 

If a capacity determination is required, the CJC recommends that the court should direct that no further steps are taken in the proceedings, and any existing orders be stayed, pending such determination. This should be subject to a power to order otherwise, based on a ‘balance of harm’ approach. 

In many cases there will be a need to commission an expert assessment of capacity. However, this may not always be possible, for example if the party refuses to engage in the process or if there is a lack of funding available. If that is the case the court will have to rely on any medical records available, as well as witness statements from family, friends, and professionals involved with the party, in addition to hearing evidence from the party themselves. 

There will likely be a need to order disclosure of evidence relevant to the issue, which should be limited to what is necessary and proportionate. The CJC is of the view that the legal basis for disclosure in these circumstances needs clarification, and guidance should be provided as to how the power should be exercised.   

It is the view of the CJC that determination of a party’s current litigation capacity is not generally a matter in which other parties have a right to be heard, although it acknowledges that there will be cases where this is so inextricably linked with the substantive issues (e.g. disputes about limitation) that the other party must be given a right to be heard. 

However, the party whose capacity is being questioned clearly has an interest in the issue and must have a proper opportunity to dispute any suggestion that they lack capacity. The CJC recommends that further consideration should be given to the creation of further options, such as a power for the court to make interim declarations of incapacity, so that a litigation friend can be appointed for the limited purpose of investigating and presenting evidence for a final determination of the issue of capacity.  

If investigations lead to an obvious conclusion about capacity, then there may be no need for a hearing. However, where capacity remains in issue, it should be determined at a hearing where the party in question has a proper opportunity to be heard. The role of legal representatives at these hearings will be to assist the court by ensuring that the relevant factual and legal material is seen and understood, but they should not advocate for a finding one way or another. 

The Working Group was split as to whether these hearings should be in private or public. Ultimately, it does not recommend any specific starting point in favour of determination hearings being held in private or subject to anonymity and reporting restrictions. However, in each case the court should expressly consider what, if any, measures are required in relation to privacy and anonymity. There should also be a power to exclude other parties in the substantive hearing from all or parts on the hearing.   

Parties who are found to lack capacity following determination must have a right to appeal, with appropriate procedural modifications to allow them to engage in that process. 

The CJC considers that the question of who should bear the costs of the determination at the end of the case can be adequately dealt with by the courts under their broad discretion in relation to costs, on a case-by-case basis. The more difficult issue is likely to be who should bear the up-front costs, for example of an expert capacity assessment. While in some cases the other party may pay, the CJC acknowledges that there will be a need for additional funding to enable the courts to do justice in all cases. It recommends the Government establish a ‘fund of last resort’ to ensure that the court can ensure access to justice for parties who may lack capacity to conduct their own litigation. 

The CJC acknowledges that this report is just a first step in improving the procedure for assessing litigation capacity in civil claims. It remains to be seen which of its recommendations will be implemented.  For now, the report provides practitioners with welcome guidance as to what is likely to be expected going forward, as well as a helpful framework for dealing with such issues before substantive procedural changes are made. 

Holly Tibbitts is a barrister at Deka Chambers.