The closing date for submissions is 17th March 2024.
The issue
The question of capacity is one which can have significant implications for every step in a claim both before and after litigation has commenced and up to settlement or trial.
The working party considered the problem posed by CPR Part 21 (Children and Protected Parties) in cases in which the question of a party's capacity has yet to be determined. The working party was also concerned with making recommendations for improving rules, directions or other matters.
The consultation
This is divided into six themes which align with those that the working party discussed. Questions follow each section in the consultation document:
- The nature of the issue and the role of the court
The issue is, in essence, whether a litigation friend should be appointed to conduct the litigation on the claimant's behalf. It is one in which other parties will not generally have any legitimate interest, but they may have such an interest in the claimant's past capacity: in other words in relation to steps which might have been taken before capacity became an issue. The party whose capacity is at issue also has a clear interest and must have the opportunity to dispute the suggestion. The claimant's legal representative will also have an obvious interest.
The working group was concerned that the adversarial system did not appear to serve the parties' best interests so far as the question of capacity was concerned and considered that the court's role should instead be "quasi-inquisitorial" i.e. that the court would be responsible for ensuring that it had the necessary evidence before it. This seems to give rise to its own issues, not least concerning protecting the position of the person whose capacity is being questioned.
- Identification of the issue
The question how a party's potential lack of capacity is to be brought to the court's attention concerned the working party. Its view was that the issue is not consistently identified or raised at present, perhaps due to misplaced reliance on the “presumption of capacity” by which it cannot be assumed that an individual lacks capacity simply because that person has a particular medical condition or disability. Where there is good reason for cause for concern or legitimate doubt as to a party's capacity to litigate, this presumption ought not to be used to avoid taking responsibility for assessing and determining capacity.
There are separate, though related, issues around whether a party is represented or unrepresented. With regard to unrepresented parties, the working party discussed whether it was the duty of legal representatives to raise an issue with the court about a party's capacity even where that party was not their client.
- Investigation
In deciding whether a party has capacity the court must establish whether that person is able or not to understand, retain, use and/or weigh relevant information and/or communicate their decisions. If not, whether the inability is caused by an impairment or disturbance in the functioning of the mind or brain.
Where the party is represented this is procedurally more simple than if the party is not. In the former case the party's own legal team will carry out the necessary investigation. In the latter, the court is expected to carry out the exercise itself which, as the working party identified, has implications in terms of time and judicial resource and raises doubts about the legal basis for such a procedure.
The working group discussed whether assistance to the court could be provided by statutory bodies such as the Official Solicitor or, as in the Court of Protection, from the Public Guardian, NHS and others. Funding was thought to be limiting factor here as well, however. Potential problems concerning confidentiality and trust if a report was obtained from the party's own treating clinician is another difficulty.
- Determination
If capacity is contested, a court hearing must be held to determine the issue. The consultation document records that how such a hearing should be conducted was the "most difficult" issue considered by the working party.
It seems that there was no agreement on whether other parties/their representatives could attend the hearing as there was concern that this might mean otherwise confidential information being disclosed.
Where the party's own legal representatives believed their client lacked capacity but that was disputed by their client, the representatives' role would be to assist the court rather than investigate themselves.
The working group agreed there should be a right to challenge a determination of the court as to capacity, but the mechanism for this is not set out.
- Substantive proceedings pending determination
The consensus on this issue was that proceedings in train should be dealt with as in CPR 21.3(2) which provides that, where there is a protected party, no application or step in the proceedings can be taken until a litigation friend has been appointed. The same should apply whilst capacity is being determined and, until then, there should be no appointment of a litigation friend without the court's permission. The court should use the "balance of harm" when considering the interests of other parties affected by this.
- Funding and costs
This raises what are potentially the most difficult issues. The working group discussed various proposals including allowing parties' solicitors to make a legal aid application on their client's behalf where capacity is thought to be an issue, investigating whether legal expenses insurance might be available and establishing whether the party has sufficient resources to fund the investigation. The last option presents an obvious problem: can a party who is ultimately found not to have capacity have given "good" instructions to spend his or her own money before a litigation friend is appointed?
The working group considered whether payment by the other party or parties was a feasible source of funding. This was thought only to be possible where the parties had sufficient resources and it may in any event be strongly objected to. The final option the group put forward was the setting-up of a central fund so that compliance with Article 6 of the ECHR (the right to a fair trial) and the right of access to justice.
Conclusion
The potential ramifications of changes to the way in which the courts assess litigation capacity, especially in terms of the funding of any enquiry into capacity, mean that this consultation is significant and we would be interested in your views on the various issues raised.
Please contact one of the Complex Injury Team if you would like to discuss this further.
Link to Judiciary.uk - consultation page
