Expert Witness Journal Dec 24 - Journal - Page 43
should be provided as to how the power should be
exercised.
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 of the hearing.
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.
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 caseby-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.
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 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.
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
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EXPERT WITNESS JOURNAL
41
DECEMBER 2024
