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Drilldown: Cases

Not many cases (261 of them) have been added to the database so far. To see the full list of cases (2087) go to the Mental health case law page.

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Cases > Subject: Litigation capacity cases

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Page name Sentence Summary
CS v SBH (2019) EWHC 634 (Fam)

Whether child had "sufficient understanding" to conduct appeal without Guardian

"Thus in determining whether the child has sufficient understanding to give instructions to pursue an appeal and to conduct the appeal I need to consider a range of factors including: (i) The level of intelligence of the child. (ii) The emotional maturity of the child. (iii) Factors which might undermine their understanding such as issues arising from their emotional, psychological, psychiatric or emotional state. (iv) Their reasons for wishing to instruct a solicitor directly or to act without a guardian and the strength of feeling accompanying the wish to play a direct role. (v) Their understanding of the issues in the case and their desired outcome any matter which sheds light on the extent to which those are authentically their own or are mere parroting of one parents position. ... (vi) Their understanding of the process of litigation including the function of their lawyer, the role of the judge, the role they might play and the law that is applied and some of the consequences of involvement in litigation. ... (vii) The court's assessment of the risk of harm to the child of direct participation for the risk of harm arising from excluding the child from direct participation and the child's appreciation of the risks of harm."

DM v Dorset County Council (2019) EWCOP 4

Litigation capacity

Unsuccessful challenge to a finding that DM lacked litigation capacity.

Hinduja v Hinduja (2020) EWHC 1533 (Ch)

Protected party - litigation friend

(1) Medical evidence on capacity to conduct proceedings is not required under the CPR, and in this case to require it would not be necessary or in accordance with the overriding objective. The court decided that SP was a protected party. (2) The defendants argued that the proposed litigation friend failed both limbs of the relevant test (ability fairly and competently to conduct proceedings and having no adverse interest). Having considered the tests (including noting that "[w]hether the existence of a financial interest on the part of the litigation friend should debar [her] from acting will depend on the nature of the interest, and whether it is in fact adverse or whether it otherwise prevents the litigation friend conducting the proceedings fairly and competently on the protected party's behalf") the court made the appointment sought.

LJ v Mercouris (2019) EWHC 1746 (QB)

Litigation friend

"The essential questions are: (1) Does Mr [J] lack capacity within the meaning of the Mental Capacity Act 2005. (2) Is the court satisfied that Mrs [J] satisfies the conditions in Rule 21.4 (3). This requirement is incorporated by Rule 21.6 (5). The main function of a litigation friend appears to be to carry on the litigation on behalf of the Claimant and in his best interests. However, part of the reasoning for imposing a requirement for a litigation friend appears also to be for the benefit of the other parties. This is not just so that there is a person answerable to the opposing party for costs."

Sunderland City Council v AS (2020) EWCOP 13

Capacity - DOL

(1) The court decided that a CTO patient lacked capacity in all relevant areas (litigation, residence, care and contact). When giving oral evidence the jointly-instructed psychologist changed her mind on: litigation capacity (initially she thought AS had litigation capacity while not having subject matter capacity), residence (she placed insufficient weight on 'structure and routine', which is an integral part of the information relevant to a decision on residence in supported as opposed to independent living), and fluctuating capacity. The judge noted with approval the approach in NICE guidance on "Decision-making and mental capacity" to people with executive dysfunction. (2) The court authorised the deprivation of liberty (there was a high level of supervision throughout the day and night, in the accommodation and community).

TB v KB (2019) EWCOP 14

Capacity to conduct proceedings

"Law applicable to the court's determination of the question of whether P lacks capacity to conduct proceedings is well settled. ... Having regard to that analysis, I am clear that P does lack that capacity. This leaves the question of P's participation in these proceedings."

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