Expert Witness Journal Dec 24 - Journal - Page 42
Determining Capacity to Litigate in Civil
Proceedings: New Recommendations
From the Civil Justice Council
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.
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.
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.
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.
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.
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.
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.
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
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
EXPERT WITNESS JOURNAL
40
DECEMBER 2024
