Understanding Capacity to Litigate and the Civil Justice Council’s Proposals

When someone goes to court, their ability to understand and participate in their court case is crucial. But what happens if there are doubts about their mental capacity to engage in legal proceedings? This is where the idea of “litigation capacity” comes into play—a vital concept that ensures fairness in in the court process.

What is Litigation Capacity?

Litigation capacity refers to a person’s mental ability to make decisions about their case, give instructions to their solicitor, or represent themselves in court. If someone is found to lack this capacity, the courts appoints a “litigation friend” to guide and support them through the legal process. The Civil Procedure Rules (CPR) outlines how litigation friends assist but the rules do not provide a clear process for determining whether someone actually lacks capacity. This gap has led to inconsistent practices, delays and, at times, unfair outcomes.

Why Does it Matter?

Getting this right is critical. If someone is wrongly judged to lack capacity, they lose the ability to control their case, this is an infringement on their autonomy. On the other hand, if they are incorrectly deemed capable, they might not receive the support they need, effectively leaving them at a disadvantage.

Key Recommendations from the Civil Justice Council (CJC)

The Civil Justice Council (CJC) has recently made several important recommendations to address these issues in their latest November 2024 report:

1. Clear Guidelines in the Rules: The CJC has called for specific rules and procedures in the CPR to determine litigation capacity. This would provide a consistent framework for judges, solicitors, and the general public to work against when capacity is in doubt.

2. Early Identification: Issues of capacity should be identified as soon as possible to avoid delays and ensure fair outcomes. This will also ensure that vulnerable individuals are supported from the beginning.

3. Tailored Solutions: A “one size fits all” approach doesn’t work as all cases are different. Instead, the court should have a menu of options to handle different situations appropriately.

4. Funding Support: Investigating and determining capacity can be expensive. The CJC proposes creating a central fund to cover these costs, ensuring no one is excluded from justice due to financial barriers.

5. Privacy and Anonymity: Protecting the privacy of individuals whose capacity is questioned is crucial. This includes the option to hold hearings privately or anonymise identities when needed.

6. The right to Appeal: The party who is found to lack capacity must have a right to appeal; changes to the current appeal procedures will need to be made.

Moving Forward

The CJC’s recommendations aim to strike a balance between protecting individual rights and maintaining the efficiency of the justice system. By addressing the gaps in the current rules, these changes could help make the system more accessible, consistent and fair.

Litigation capacity might seem like a technical issue, but at its heart, it’s about access to justice for everyone. By addressing these challenges, the system can ensure that all voices are heard—whether directly or through the support of a litigation friend.

These recommendations have not been adopted by the Ministry of Justice. Whilst we anticipate that funding will be an issue, we support the recommendations.