By Dominique Gillan
We are well familiar with the rules and practice directions dealing with vulnerable parties in family proceedings. But what about the less frequently encountered position of a party who lacks litigation capacity?
The starting point is the Mental Capacity Act 2005 which provides as follows:
S1 Principles
- ……
- A person must be assumed to have capacity unless it is established that he lacks capacity.
- A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
- A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
- ……
- Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
The procedure is then set out in the FRP r15
15.2 A protected party must have a litigation friend to conduct proceedings on that party’s behalf.
15.3(1) A person may not without permission of the court take any step in proceedings except
(a) filing an application form; or
(b) applying for the appointment of a litigation friend under rule 15.6,
until the protected party has a litigation friend.
15.3(3) Any step taken before the protected party has a litigation friend has no effect unless the court orders otherwise
And PD15B
- An adult who lacks capacity to conduct the proceedings is a protected party and must have a litigation friend to conduct the proceedings on his or her behalf. The expectation of the Official Solicitor is that the Official Solicitor will only be invited to act for the protected party as litigation friend if there is no other person suitable or willing to act.
Capacity to conduct litigation may be distinct from capacity to make other decisions: AF v SF [2019] EWHC 1224 (Fam), [2020] 1 FLR 121. In the same way that a party should not be regarded as lacking capacity merely because a decision they make was one that would not be made by a person of ordinary prudence, equally, a party is not to be regarded as having capacity merely because a decision they make appears rational: Masterman-Lister v Brutton [2002] EWCA Civ 1889, [2003] All ER 162
S2 of the MCA 2005 provides that it matters not whether the impairment or disturbance is permanent or temporary and that lack of capacity cannot be established by mere reference to a person’s age or appearance, or aspect of his behaviour. Ultimately each decision is issue specific, with the question of capacity being decided on the balance of probabilities.
How does one go about establishing that a party lacks litigation capacity? Is medical evidence required?
In Masterman-Lister [2002] EWCA Civ 1889, [2003] All ER 162 Chadwick LJ considering RSC Order 80, the precursor to the CPR 1998, held at [66] that:
“The rule making body plainly contemplated, and intended, that the question of whether a party was required to act through a next friend or a guardian ad litem should, in the ordinary case, be determined by the party himself or by those caring for him; perhaps with the advice of a solicitor but without the need for inquiry by the court. Order 80 r2(3) required that a next friend of guardian ad litem must act by a sol; and rule 3(8)(9i) required that, in such a case, the solicitor was to file a certificate certifying that he believed the party to be a patient, with his grounds of belief. But there was no requirement, as such, in the rules for the filing or consideration of medical evidence. If the rule were to work in practice, the test of mental capacity should be such that, in the ordinary case, the need for a next friend or guardian ad litem should be readily recognised by an experienced solicitor.”
This was reiterated by Falk J in Hinduja v Hinduja & Others [2020] EWHC 1533 (Ch), who noted that:
There is no requirement in the CPR to produce medical evidence. ….There is no reference to medical evidence in CPR 21.6. The only reference to medical evidence is in para 2.2 of PD 21, which applies where CPR 21(5)(3) is relied on. That requires the grounds of belief of lack of capacity to be stated and, “if” that belief is based on medical opinion, for “any relevant document” to be attached. So the Practice Direction provides that medical evidence of lack of capacity must be attached only if (a) it is the basis of the belief, and (b) it exists in documentary form. It does not require a document to be created for the purpose.
While both the above cases are civil cases falling under the purview of the CPR, the terms of CPR 21.6 are almost identical to that to be found in FPR 15.6. The difference comes in the practice directions that expand upon the rules:
| CPR | FPR |
| PD2.2
A person who wishes to become a litigation friend without a court order pursuant to rule 21.5(3) must file a certificate of suitability in Practice Form N235 – (a) stating that he consents to act, (b) stating that he knows or believes that the [claimant] [defendant] …..lacks capacity to conduct the proceedings, (c) in the case of a protected party, stating the grounds of his belief and, if his belief is based upon medical opinion or the opinion of another suitably qualified expert, attaching any relevant document to the certificate
|
PD15B
1.2 Expert evidence as to whether a party lacks such capacity is likely to be necessary for the court to make a determination relating to the party’s capacity to conduct proceedings. However, there are some cases where the court may consider that evidence from a treating clinician such as a treating psychiatrist is all the evidence of lack of litigation capacity which may be necessary. There may also be cases where it will be clear that a party does not have litigation capacity such as where the party is in a coma, minimally conscious or in a persistent vegetative state. In those cases, the court may well consider that a letter from a treating doctor confirming the party’s condition is sufficient evidence of lack of litigation capacity and not need a report from an expert. |
There is further guidance in the FJC’s Capacity to Litigate in Proceedings Involving Children guidance dated April 2018:
- It would be very unusual for the court to make a finding on capacity without any medical (or in the case of learning difficulties) psychological evidence……It will be a rare case where the court will be able to do this without medical or psychological evidence.
Therefore, while the FPR does not mandate the reliance upon medical evidence, it is a clear expectation that this will be the norm.
The court has no power to force a party who appears to lack capacity to submit to medical examination. Where the potential protected party concerned is the applicant, the court could stay proceedings until that party produces evidence to dispel any doubt as to capacity. But what if such gentle persuasion fails to yield results? Again, there is assistance in the April 2018 FJC Guidance:
- If no expert report can be obtained and the potentially protected party refuses to consent to obtaining one (or refuses or does not attend for medical or psychological examination) then the court must consider what, if any other evidence might be available to assist the court in making its finding of fact and should give necessary directions.
Paragraph 85 then sets out examples of evidence which the court could consider in arriving at a decision in respect of a person’s capacity to litigate. This included information from schools, GPs, and local authority adult safeguarding teams.
The issue litigation capacity has to be considered at the material time, namely the time that the proceedings are before the court. Where protected party’s incapacity to litigate is transitory, should the court wait? Not unpredictably, where decisions are made on a case-by-case basis, it depends. In Children Act cases, where the court’s paramount consideration remains welfare of child: in RP v UK [2012] ECHR 1796, the ECHR concluded that it would not have been appropriate for there to be periodic reviews of a mother’s litigation capacity as this would have caused unnecessary delay and would have been prejudicial to the welfare of the child who was the subject of proceedings initiated by the Local Authority, where the bests interests of the child were the touchstone by which domestic courts would assess the case.
A final note: there is a duty upon both counsel and solicitor, once they have formed the view that a party may not have litigation capacity to raise the issue with the court at the earliest opportunity, and there is a potential for a claim of negligence if lack of capacity or vulnerability is not identified to the court: Hill v Fellowes [2011] EWHC 61 (QB), [2011] All ER (D) 157 (Jan). While consideration of a party’s litigation capacity will inevitably result in delay to the proceedings, grappling with it at the earliest possible opportunity should minimise such delay.
Dominique Gillan is an experienced family practitioner and features in the Legal 500 for both children and financial work.
If you require advice, or representation, you can contact the clerks on 01483 539131 or email them at clerks@guildfordchambers.com
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This article has been provided free of charge for information purposes only. Although care is taken to ensure the information is accurate no responsibility is assumed by the author or any member of Guildford Chambers for reliance on the content or the accuracy of such content. The information, and/or commentary, does not constitute legal advice and if you have a legal dispute you should seek advice from a solicitor or barrister about your case. Accordingly, no member of Chambers shall be responsible for any action you take or refrain from taking in reliance of anything in this article or case summary.
