Establishing mental capacity in civil proceedings

What does capacity to litigate mean?

The question of whether an adult party in civil court proceedings lacks capacity to litigate, also known as capacity to conduct the proceedings, is key to ensuring that parties who have capacity are not wrongly deprived of their right to conduct their own litigation; and parties who lack capacity have effective access to justice.

The Mental Capacity Act 2005

Section 2(1) of the Mental Capacity Act 2005 (MCA 2005) provides that a person lacks capacity “if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”. The Supreme Court has confirmed that the first question to be asked is whether the person is unable to make a decision for themself in relation to the matter. If so, the second question is whether that inability is “because of” an impairment of, or a disturbance in the functioning of, the mind or brain. The impairment or disturbance can be permanent or temporary. The Court was clear that the two questions “are to be approached in that sequence”, notwithstanding passages in the MCA 2005 Code of Practice which suggest otherwise.

A person must be assumed to have capacity unless it is established that they lack capacity; they must not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success, and they must not be treated as unable to make a decision merely because they make an unwise decision.

In terms of capacity to litigate, this will mean considering whether the person understands, with the assistance of appropriate legal and/or expert advice, what they need to understand in order to pursue or defend a claim. In considering whether a party has capacity to litigate, it is important to focus on what the specific demands on the litigant in those specific proceedings are.

Part 21 of the Civil Procedure Rules (CPR) deems that a person who lacks capacity to litigate is a ‘protected party’ and makes provision for another person to be appointed (as a ‘litigation friend’) to act for the protected party.

Though the MCA 2005 sets out the test for assessing capacity, where capacity to litigate is in doubt, the CPR and Practice Directions do not set out how to identify or investigate the issue. Instead, judges, parties and legal representatives have had to propose ad hoc solutions, particularly where a party is not legally represented, where they dispute the suggestion that they lack capacity, or where they refuse to cooperate with any investigations into the question of capacity.

Accordingly, in 2022 the Civil Justice Council (CJC) created a working group to consider the issue of how a party’s capacity to litigate should be identified, investigated, and determined. The working group launched a three-month public consultation on the procedure for determining capacity in civil proceedings. The final report was published on 11 November 2024.

What recommendations are made in the CJC’s final report?

The report recommends, as practical steps, the need for a clear procedure containing a “menu of options”, to be set out in Part 21 or the accompanying practice direction/s along with specific professional guidance, judicial training and further legislation. The CJC recommends that these procedures include:

1. formalisation of the use of an ‘informal’ litigation friend to act prior to the issuing of a litigation claim
2. 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
3. consideration of the need to protect the party’s privacy, confidentiality and legal professional privilege including by way, if necessary, of private hearings, excluding parties, anonymity orders and reporting restrictions
4. a right to appeal by the party found to lack capacity
5. that the court will not generally hear other parties in relation to the determination of another party’s current litigation capacity, but there may be cases where it is right to do so
6. that the legal representatives of the person whose capacity is in doubt, must carry out the investigatory work into the issue
7. that there will need to be a range of options available to assist in circumstances where the party is unrepresented
8. if an issue of litigation capacity requires determination, no further steps be taken in the proceedings until determination of the issue.

The CJC also recognised that the new recommended procedures should be based on certain principles, including:

• the fundamental importance of the issue of litigation capacity
• the right of those with capacity to conduct their own litigation
• the need to protect the interests of a party who may lack capacity
• the need to protect the interests of other parties to the proceedings and proportionality
• the need for the court to adopt a quasi-inquisitorial approach, ensuring that the court has the evidence it needs to make a determination
• the need to identify any litigation capacity issues as soon as possible and assist the court to identify and determine the issue
• an acceptance that the presumption of capacity under the MCA 2005 is of course important, but it can’t be relied on to avoid the issue when it arises.

In addition, the CJC has helpfully recommended that there needs to be adequate funding available for the investigation and determination of issues of litigation capacity, including the creation of a “central fund of last resort”.

The recommendations and underlying principles recommended by the CJC are welcomed and no doubt the extensive work already undertaken in the Court of Protection in relation to many of the proposals in that jurisdiction, will be of benefit as the relevant legislation, rules and guidance are considered further and developed over coming months and years.

If you have questions or concerns about mental capacity in civil court proceedings, please contact our mental capacity and Court of Protection specialist, Zena Bolwig.