Litigation capacity cases

See also: Category:Capacity and DOL
The old category structure used on this page is comprehensive as it contains every relevant case. The new database structure was introduced in 2019. It is more potentially useful than the old categorisation system: it includes all cases since January 2017, but only a minority of older cases: see Special:Drilldown/Cases. The pages below are initially ordered according to the dates on which they were added to the site (most recent first). The order can be changed by clicking on the symbol beside a column heading: click on the symbol beside "Page and summary" for alphabetical order; click beside "Categories" for the order in which the cases were reported. Click on the arrow symbol again to reverse the order. Click on a page name to view the relevant page. Asterisks mark those cases which have been added to the new database structure.

Case and summary Date added Categories
* Litigation capacity, bulimia Lancashire and South Cumbria NHS Foundation Trust v Q [2022] EWCOP 6(1) The court-appointed expert had wrongly treated Mostyn J's decision in An NHS Trust v P [2021] EWCOP 27 (that it is virtually impossible and would be completely illogical to say that someone has litigation capacity despite lacking subject matter capacity in medical treatment cases) as meaning the two tests were synonymous, and had wrongly confused the likely unwise instructions with lack of capacity to instruct a legal adviser: Q had capacity to litigate. (2) The judge also disagreed with the expert on capacity in relation to potassium treatment for hypokalaemia (a consequence of bulimia) and found it difficult to resist the conclusion that the independent expert's instinctive professional desire to save Q's life had allowed the "tail of welfare to wag the dog of capacity" (for example, the expert's opinion was that Q attributed little value to her own life and saw little of value in her future, but this did not necessarily mean that her ability to weigh life and death medical decisions in the balance was impaired; instead, it might represent a finely calibrated utilitarian calculation). Q had capacity despite her decisions being unwise and most likely to hasten her death. (3) For essentially the same reasons, she had had capacity when when she made an advance decision to refuse treatment. 2022‑03‑03 23:14:18 Judgment available on Bailii

* Litigation capacity Richardson-Ruhan v Ruhan [2021] EWFC 6A literal interpretation of the Masterman-Lister test would suggest that in the absence of legal advice and representation the wife would be legally incapacitated and the court would be obliged to appoint a litigation friend, which had two problems: (a) it creates circular reasoning, in that if a litigation friend secures representation the incapacity would disappear; (b) if capacity depends on the presence of advice and representation, then it would depend also on its quality, which would be difficult to investigate: the capacity to conduct proceedings cannot depend on whether the party receives no legal advice, or good legal advice or bad legal advice. The judge decided that if the party would be capable of making the necessary decisions with the benefit of advice then she has capacity whether or not she actually has the benefit of that advice, and if the party is unrepresented the solution is an adjournment in order for representation to be secured rather than the protracted and elaborate procedure of appointing a litigation friend. The wife had the relevant capacity, and the hearing was adjourned. 2022‑02‑09 23:05:21

* Litigation capacity Aderounmu v Colvin [2021] EWHC 2293 (QB)The claimant, in a negligence case against his GP, argued that the limitation period had not started to run since he had lacked capacity to conduct the litigation (alternatively that he did not obtain the requisite knowledge more than three years before issuing the claim, or that the limitation period should be disapplied by the court). The court held that the limitation period had expired but allowed the claim to proceed. 2021‑09‑12 20:14:58

* Litigation capacity and litigation friend Greetham v Greetham [2021] EWHC 998 (QB)The court considered whether the defendant lacked capacity to conduct litigation, and was therefore a protected party; and if so whether his brother's application to be appointed as litigation friend satisfied the conditions of Civil Procedure Rules, rule 21.4(3) as applied by rule 21.6(5). 2021‑05‑08 20:56:25

* Subject-matter and litigation capacity An NHS Trust v P [2021] EWCOP 27P's psychiatrist initially stated that P lacked subject matter capacity (whether to take HIV medication) yet had litigation capacity. (1) The judge: (a) disagreed with the proposition that if a person lacks capacity to conduct proceedings as a litigant in person she might, nevertheless, have capacity to instruct lawyers to represent her and that the latter capacity might constitute capacity to conduct the litigation in question; (b) thought it virtually impossible to conceive of circumstances where someone lacks capacity to make a decision about medical treatment, but yet has capacity to make decisions about the manifold steps or stances needed to be addressed in litigation about that very same subject matter (it would be as rare as a white leopard). (2) On the facts, P lacked both subject matter capacity and litigation capacity. 2021‑05‑01 21:10:06

* Capacity - DOL Sunderland City Council v AS [2020] EWCOP 13(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). 2020‑07‑07 16:47:31

* Protected party - litigation friend Hinduja v Hinduja [2020] EWHC 1533 (Ch)(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. 2020‑06‑25 21:33:31

* Litigation friend LJ v Mercouris [2019] EWHC 1746 (QB)"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." 2019‑07‑06 22:29:26 2019 cases, Cases, Judgment available on Bailii, Litigation capacity cases, Litigation friend cases

* Capacity to conduct proceedings TB v KB [2019] EWCOP 14"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." 2019‑05‑09 12:28:53 2019 cases, Cases, Judgment available on Bailii, Litigation capacity cases

* Whether child had "sufficient understanding" to conduct appeal without Guardian CS v SBH [2019] EWHC 634 (Fam)"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." 2019‑03‑19 22:00:58 2019 cases, Cases, ICLR summary, Judgment available on Bailii, Litigation capacity cases

* Litigation capacity DM v Dorset County Council [2019] EWCOP 4Unsuccessful challenge to a finding that DM lacked litigation capacity. 2019‑03‑14 14:26:53 2019 cases, Cases, Judgment available on Bailii, Litigation capacity cases