Better guidance and training key to any new approach to determine litigation capacity

Earlier this month, we submitted a response to the Civil Justice Council’s (CJC) consultation on the procedure for determining mental capacity in civil proceedings.

In this article, we provide an outline of the various themes covered in the consultation, along with a summary of our key points.

Background to the consultation

Creation of the working group was approved at the CJC's July 2022 meeting, following a request to the council by a legal practitioner who raised the shortcomings in the rules relating to the current procedure for determining capacity to conduct proceedings in civil claims.

The consultation launched in December 2023 and closed on 17 March 2024.

Consultation – an overview

By way of a summary, the issues identified and provisional proposals set out in the consultation paper, focus on six key themes as follows:

• “The nature of the issue of capacity and the role of the court.”
• “Identification of the issue” – how the potential lack of litigation capacity is brought to the attention of the court, and who should be responsible for investigating it. 
• “Investigation of the issue” – what evidence the court needs to determine litigation capacity, and what the role of the Official Solicitor is. 
• “Determination of the issue” – how hearings to determine litigation capacity should be conducted. 
• “Substantive proceedings pending determination” – what steps should be taken pending a determination on litigation capacity by the court. 
• “Funding and costs” - ensuring access to justice for vulnerable parties who may lack litigation capacity. 

Following analysis of the consultation responses, the working group will publish its formal response to include any recommendations to improve rules and practice directions. 

Kennedys response

We highlighted to the CJC that in the context of personal injury and clinical negligence cases, the defendant, its insurer client and legal representative will ordinarily have a vested interest in the outcome of the determination of a party’s current litigation capacity (as opposed to the substance of the hearing).

A claimant’s mental capacity to litigate is obviously a sensitive and personal issue. However, there will be circumstances where other parties have a clear interest in the outcome of any such determination.

In our view, capacity must be presumed unless otherwise established and as soon as a dispute about it comes to light, the court should make a determination at a preliminary hearing as early as possible.

We recommended that in personal injury and clinical negligence cases, there should be clearer guidance as to the role of legal representatives in raising with the court an issue as to the litigation capacity of another party to the proceedings who is unrepresented, and an avenue for them to do so. However, whilst an ability to raise issues should be available, we consider legal representatives should not owe a duty to those they do not represent.

Ultimately, better guidance and training for solicitors and experts will be key to any new approach – assisting both in their understanding and application of the Mental Capacity Act 2015 and accompanying Code of Practice.