Final report on the procedure for determining mental capacity published

A final report following a Civil Justice Council’s (CJC) working group’s consultation on mental capacity was published on 11 November 2024. This proposes the creation of a ‘menu of options’ for the court to ensure an appropriate approach can be adopted in each case.

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.

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

In our response we recommended that in personal injury and clinical negligence cases there should be clearer guidance on the role of legal representatives in raising an issue with the court regarding the litigation capacity of an unrepresented party, and provide an avenue for them to do so. However, legal representatives should not owe a duty to those they do not represent.

Overview of the final report

The report states: “…the absence of any clear procedure or guidance means that procedures are developed on an ad-hoc basis, which is inefficient and leads to inconsistency of approach and that some “work arounds” that are employed may lack any proper basis.”

The key recommendations and principles include:

• In dealing with issues of capacity, the court must take into account of:
  • The fundamental importance of the issue;
  • The right for those with capacity to conduct their own litigation;
  • The need to protect the interests of the party who may lack capacity, at a time when they are unable to protect their own interests;
  • The need to protect the interests of other parties to the substantive proceedings; and
• The court's role should be quasi-inquisitorial; it is responsible for ensuring it has the necessary evidence to resolve the issue, even though the task of collecting this evidence will be delegated to others.
• Matters concerning litigation capacity should be recognised and resolved at the earliest opportunity.
• While the presumption of capacity is an important starting point, it should not be used to avoid a proper determination of the issue when it arises, even if gathering evidence may be challenging.
• The determination of a party's current litigation capacity is typically not an issue where other parties have a right to be heard. However, all parties and their legal representatives have an obligation to assist the court in identifying and determining issues related to litigation capacity.
• When the party whose capacity is in question is legally represented, the legal representatives should handle the investigation of the issue. In other cases, the court should have various options for delegating this task, including existing options, and possibly new ones based on procedures currently used in the Court of Protection.
• The court should have a clear power to order the disclosure of evidence relevant to the issue of litigation capacity, accompanied by guidance to ensure that this is only used when necessary and proportionate.
• Once the court determines that a litigation capacity issue needs to be resolved, it should generally order that no further steps be taken in the proceedings and that any existing orders be stayed until the issue is determined.
• When conducting hearings to determine a party's litigation capacity, the court should consider what measures are needed to safeguard the party’s rights to privacy, confidentiality, and legal professional privilege.
• A party who is found to lack litigation capacity must have a right of appeal and we consider it should be specifically noted that capacity is time specific, with the real possibility of a claimant deemed to lack litigation capacity regaining that capacity at a later date.
• Adequate funding must be provided for the investigation and resolution of litigation capacity issues, including the establishment of a central fund as a last resort.

The report also notes: “the strong view of the working group, and the almost unanimous view of the judges and practitioners whom it consulted, that there should be clear provision and guidance on the procedure for the determination of issues of litigation capacity”.

Next steps

Sir Geoffrey Vos, Master of the Rolls, Head of Civil Justice and Chair of the CJC acknowledged that the report “is only the beginning”.

The Civil Procedure Rule Committee will consider amending Part 21 of the Civil Procedure Rules or the Practice Direction to implement the recommendations, and for other stakeholders to consider the recommendations made to them. The CJC plans to review progress on the recommendations “after enough time has passed for their effect to be assessed.”

Related items:

• Better guidance and training key to any new approach to determine litigation capacity
• Civil justice reforms – roundup of 2024 and a look ahead to 2025