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On 11 November 2024, the Civil Justice Council (CJC) published its report on the procedure for determining mental capacity in civil proceedings (the Report). Head of the CJC, Sir Geoffrey Vos, commented that ‘Tackling the issue of mental capacity of litigants in our courts will help make the civil justice system more accessible, fair and efficient’. The Report attempts to clarify the procedure for determining a party’s capacity where the Civil Procedure Rules (CPR) have previously been unclear, which has led to courts and parties making ad hoc decisions and inconsistencies.

Previous Uncertainty

Part 21 of the CPR sets out the procedure for conducting a civil claim where the party is deemed to be a ‘protected party’. A protected party is defined in CPR 21.1(1) as ‘a party who lacks capacity within the meaning of the Mental Capacity Act 2005 to conduct proceedings’. CPR 21 provides that:

• A protected party must have a litigation friend to conduct proceedings on their behalf. A litigation friend is someone who can fairly and competently conduct proceedings on behalf of the protected party and has no interest adverse to them.
• Any settlement of a claim made in relation to a protected party must be approved by the court.
• If during proceedings a party lacks capacity to continue to conduct the proceedings no party may take any further step in the proceedings without the court’s permission until the protected party has a litigation friend.
• Any step taken before a protected party has a litigation friend has no effect unless the court orders otherwise.

Whilst CPR 21 sets out the procedure for conducting proceedings where a party does not have capacity to do so themselves, it provides no guidance as to how to identify, investigate and determine whether a party has capacity, where the issue is in doubt.  The Report therefore recommends the CPR include a clear procedure for legal representatives and the courts, to determine a party’s capacity where it is in doubt, particularly where a party is not legally represented or there is a dispute between a party and their legal representative.

The Report

Recommended starting point

The Report recommends that where a party’s capacity has not been established; the determination of a party’s mental capacity is a matter of case management. The Report makes clear that the CPR should ensure legal representatives (as part of their overriding objective)  can assist the court in identifying and determining whether a party has capacity to conduct proceedings, where there is doubt.

A further recommendation is that the threshold for triggering this duty should be one of ‘reasonable grounds’ that the individual may lack capacity. The Report suggests that the appointment of a litigation friend under CPR 21, should be conducted prior to a claim being issued, ensuring a party is protected during the Pre-Action phase of the claim.

Investigating whether an individual has a lack of capacity

Where a legal representative cannot establish ‘reasonable grounds’, the court is required to intervene. The Report’s recommendations aim to remedy a gap within the CPR which currently provides no guidance for investigating a party’s capacity to conduct proceedings. The Report suggests the court should take a quasi-inquisitorial’ approach to any capacity investigation. Where there is doubt about a party’s capacity this could potentially increase court time, and as such, the Report suggests that the party’s legal representatives should undertake reasonable investigations before the matter proceeds to court, including gathering factual information about the party’s capacity to present to the court. 

In terms of assisting the court during investigation, if necessary and proportionate, the Report suggests that the court should have the power to order disclosure of relevant documents. This should be balanced alongside the privacy of the parties. This suggests the court will play an active role in terms of determining capacity issues at an early investigation stage.

Determining whether an individual lacks capacity

The Report recommends the court determines at a hearing any outstanding issues as to a party’s capacity that have not been resolved during the legal representative’s investigation. The Report states that the legal representative’s role will be to provide the judge with the relevant factual and legal material in the case to assist the judge to determine whether a party has capacity to litigate. The Report also recommends that, at a hearing, if the judge determines a party lacks capacity, they should have the opportunity to appeal any decision.

Finally, the CJC’s working group (the Group) has attempted to clarify the procedure where a party ‘may’ lack capacity. Currently, CPR 21 provides that a party without litigation capacity cannot take any step in proceedings without a litigation friend being appointed. However, there is no such provision for those who ‘may’ lack capacity. The Group recommends that where a party’s capacity has not been established, the approach mirrors CPR 21, and no steps should be taken in the proceedings without the court’s permission. This will help further the Group’s recommendations, that a litigation friend should be appointed as soon as possible to protect the interests of parties who lack capacity to litigate.

Conclusion

Whilst these recommendations are yet to be incorporated within the CPR, the Report emphasises the importance of providing a clear framework for determining a party’s capacity to litigate before court proceedings are issued, which has been long overdue. Legal representatives and litigants alike should be prepared to take an active role in assisting the court to determine a party’s capacity to litigate, at the earliest possible stage in the claim.

If you would like support with the topic discussed in this article, please get in touch with our Litigation and Dispute Resolution Team to discuss your circumstances with the Team via info@leathesprior.co.uk or call us on 01603 610911.

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