Civil Justice Council reports on litigation capacity

The Civil Justice Council (CJC) has published its report on mental capacity in civil proceedings, recommending the creation of a new procedure for the determination of issues as to whether a party has capacity to conduct litigation.

Although Part 21 of the Civil Procedure Rules (CPR) sets out the procedure to be adopted in relation to a party who lacks capacity to conduct proceedings (a “protected party”), the rules have never set out a procedure for identifying, investigating and determining the issue of whether a party lacks capacity.

In July 2022 the CJC set up a Working Group to consider the issue. The group was co-chaired by Daniel Clarke of Doughty Street Chambers, with Diane Astin of Brunel University, and Sophy Miles was appointed as a member (see announcement here). Between December 2023 and March 2024 the Group conducted a public consultation, to gather the views of judges, practitioners and others (see announcement here).

The Working Group identified that, in the absence of a clear procedure, judges and practitioners have been required to come up with ad-hoc approaches, sometimes lacking a clear legal basis, and leading to significant variation in how issues of litigation capacity are being dealt with.

The final report, published today, recommends that a clear procedure is needed for the determination of issues as to litigation capacity, which should be set out in CPR Part 21 and/or a Practice Direction. It also sets out proposed principles on which such a procedure should be based, including that:

• The issue requires the court to adopt an inquisitorial approach, ensuring that it has the necessary evidence to determine the issue (albeit delegating the work of investigation to third parties).
• The issue is primarily one between the court and the party whose capacity in doubt and other parties should not generally have a right to be heard on the matter.
• Parties and legal representatives should have a clear duty to raise with the court any reasonable doubts as to the litigation capacity of another party who is not represented.
• There should be a clear power for the court to order disclosure of relevant documents for the purpose of determining the issue, where it is necessary and proportionate to do so.
• The court should consider what measures are necessary to protect the privacy and confidentiality of the person whose capacity is being determined, balancing this against the principle of open justice.
• Pending the determination, no steps should be permitted to be taken in the proceedings without the permission of the court and existing orders should generally be stayed, to prevent harm to the party who may lack capacity, unless this would cause greater harm to others.

The report also makes various other recommendations, including the creation of a “fund of last resort” to cover the costs of the investigation and determination of issues of litigation capacity, where no other appropriate source of funding is available.

Commenting on the publication of the report, the Master of the Rolls said: “I am grateful to co-chairs Diane Astin and Daniel Clarke and their working group for this ground-breaking report. 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.”