Civil Justice Council working group publishes final report on procedure for determining mental capacity in civil proceedings

Courts should be provided with a ‘menu of options’ for decisions on whether participants in civil proceedings possess capacity.

That recommendation has come in the final report of a working group set up by the Civil Justice Council (CJC) to look at a procedure for determining mental capacity in civil proceedings.

It said it was “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”.

The report added: "This should principally be set out in the CPR and/or a new PD, to ensure that there is a single, easily identifiable, and authoritative source. In relation to some of the issues identified, other measures may be needed, such as professional guidance, judicial training and even legislation."

Given the huge diversity of civil cases a single procedure would be inappropriate and courts should be provided with a ‘menu of options’ together with guidance as to the relevant principles to be applied.

Sir Geoffrey Vos, Master of the Rolls, and CJC chair, said: “This work goes to the heart of the CJC’s raison d’être.

"Tackling the issue of mental capacity of litigants in our courts will help make the civil justice system more accessible, fair and efficient.

“In many ways, this report is only the beginning. I very much hope that all stakeholders will look carefully at the recommendations. I look forward to the CJC’s review of the recommendations after enough time has passed for their effect to be assessed.”

The report said if it was wrongly decided that the party lacks capacity, the appointment of a litigation friend to take decisions on their behalf “will represent a significant infringement of their personal autonomy”.

By contrast, if it is wrongly decided that the party has capacity, they may be denied meaningful access to justice.

The report said neither the civil procedure rules nor practice directions set out any procedure for determining whether a party lacks litigation capacity and although the Court of Appeal recommended more than 20 years ago that this gap should be filled “no action has been taken”.

No changes were needed in cases where the person whose litigation capacity is in doubt is legally represented, the group said.

But there had been no clear provision for cases that include unrepresented parties and represented parties who dispute the suggestion that they lack capacity and/or will not cooperate with assessments.

Judges, parties and legal representatives have been forced to come up with ad hoc solutions, which has “led to inefficiency, inconsistency of practice, and actions being taken without a clear legal basis”, the report said.

It concluded that in dealing with issues of capacity, the courts must take into account the right for those with capacity to conduct their own litigation, the need to protect the interests of parties who may lack capacity and the need to protect the interests of other parties to the substantive proceedings.

Mark Smulian