Litigation capacity

Litigation capacity is the issue of whether an adult to court proceedings has the mental capacity to conduct the proceedings. Under Part 21 of the Civil Procedure Rules (CPR) a person who lacks litigation capacity is a ‘protected party’ and must have a ‘litigation friend’ appointed to conduct the litigation on their behalf. However, the CPR does not set out any procedure for determining whether a party lacks litigation capacity.

Working Group

At its July 2022 meeting, the Civil Justice Council (CJC) approved the creation of a working group to look at a procedure for determining mental capacity in civil proceedings. In general, the working group does not seek to propose changes in situations where the party whose litigation capacity is in doubt is legally represented, as the issue in such cases can usually be resolved without the involvement of the court.

Rather, it focussed on the many other cases where the issue can be much more difficult to resolve, such as unrepresented parties and represented parties who dispute the suggestion that they lack capacity and/or will not cooperate with any assessment process. The working group notes that these situations have been addressed to date by ad hoc solutions which have led to inefficiency, inconsistency of practice, and actions being taken without a clear legal basis.

Consultation and Report

The working group held a public consultation in early 2024 and a seminar on 1 March 2024. The working group published its final report on 11 November 2024.

Report recommendations

The report recommends that the Civil Procedure Rules Committee consider:

(1)   Developing a clear procedure for cases in which the court is required to determine a party’s litigation capacity. This should be set out in CPR Part 21 and/or in a Practice Direction, to provide a clear, accessible, and authoritative source to which parties, legal representatives and judges can turn.

(2)   Whether to make a provision for the appointment of a litigation friend prior to a claim being issued, so that during a period when negotiations are proceeding and evidence is being obtained, legal representatives can be assured that a person who may lack litigation capacity has their interests properly protected and that they can rely on instructions given.

The report sets out the principles, on which such a procedure should be based, which can be used as appropriate in the particular circumstances of the case, in accordance with the overriding objective including, taking into account, in particular:

a.     The fundamental importance of the issue of litigation capacity;

b.     The need to protect the interests of the party whose capacity is in doubt, including their interests in the relation to the substantive proceedings and their right to privacy, confidentiality, and legal privilege, pending determination of the issue at a time when they may have limited ability to protect their own interests;

c.     The interests of all other parties to the substantive proceedings;

d.     The principle of proportionality.

In addition to a range of other principles, the report set out other recommendations including recommendations for professional regulatory bodies, the Ministry of Justice and Legal Aid Agency, the Judicial College and HMCTS.

Next steps

The key next step will be for the CPRC to consider an amendment to CPR Part 21 or the Practice Direction to implement the recommendations, and for other bodies to consider the recommendations made to them. The CJC plans to review progress on the recommendations after a suitable period of time has passed.

We will carefully review any proposed amendments and ensure that they are informed by the knowledge and experience of our members.

If you would like to share with us any thoughts on the report and its recommendations, please email them to policy@ewi.org.uk.