In December 2023, the Civil Justice Council (CJC) initiated a consultation into the procedure for determining mental capacity in civil proceedings. A working group has been established to delve into these issues and the consultation is expected to last for three months. Awareness of issues around capacity and fluctuating capacity is growing and the Civil Courts are playing catch up to the Family Courts.
The Mishcon de Reya Mental Capacity Group, which addresses the practical issues which arise from capacity concerns on a regular basis, welcomes this consultation and awaits the findings with interest.
The working group will be discussing several areas, including:
- The nature of the issue and the role of the Court – for example, whether the Court take on a quasi-inquisitorial role in determining capacity.
- Identification of the issue – considering how capacity is brought to the attention of the Court and who should be responsible for investigating it (legal representatives, another party).
- Investigation of the issue – for example, what evidence the Court needs to determine capacity and what the role of the Official Solicitor (OS) is.
- Determination of the issue – lack of litigation capacity is (unless uncontested) ultimately a matter for the Court, but there are issues around anonymity and rights of appeal that need to be considered.
- Substantive proceedings pending determination – considering whether steps should be taken pending a capacity determination and if a balance of harm test ought to be applied in relation to the interests of other parties to the litigation.
- Funding and costs – including who should bear the costs of determining the issue of capacity, if there should be a central fund of last resort and what happens to costs where a finding of capacity is made.
The consultation document raises several interesting points. One of the key issues is that the Civil Procedure Rules (CPR) currently make no provision for cases where capacity is in doubt, as opposed to cases where it is clear that an individual lacks capacity. The question of how this issue should be determined is a significant one which throws up several practical steps for litigators to navigate.
The existing provisions on capacity to litigate are helpfully consolidated in Appendix 2 of the consultation document, which includes a summary of what is meant by 'litigation capacity'. This consultation is an important step towards improving the rules and practice directions on capacity to litigate in civil courts. It is hoped that the working group's recommendations will lead to clearer and more effective rules in this area.