What is Litigation Capacity?

Litigation Capacity is the level of mental capacity that a person requires in order to be able to participate in proceedings in Court. If a person doesn’t have Litigation Capacity then they will need a Litigation Friend to represent them in proceedings.

The case of Masterman-Lister v Brutton & Co and Jewell & Home Counties [2002]  EWHC 417 established the modern test for capacity to litigate, which has since been expanded on. Whilst it predates the Mental Capacity Act 2005 (MCA), it established  a test that is very much in line with it. It stated that in order to have capacity to litigate, a person must be able to:

• recognise the problem(s),
• obtain and receive, understand and retain relevant information, including legal and expert advice to resolve that problem;
• retain that information for long enough to use it in decision making;
• weigh the information (including that derived from advice) in the balance in reaching a decision;
• communicate that decision

This decision stood as good law for over 15 years, and the decision in TB v KB and LH (Capacity to conduct proceedings) [2019] EWCOP14 stood to refine it further. In this case, and following the benefit of a number of years of litigation following the enactment of MCA 2005, the Court confirmed that when considering Litigation Capacity, the decision maker must consider the person’s capacity in respect of the particular issue being litigated, not their general capacity to manage the wider estate, as that raises too high a bar. The Court also stated that:

‘ legal proceedings [are] not …. simply a question of providing instruction to a lawyer and then sitting back and observing the litigation, but rather a dynamic transactional process, both prior to and in court, with information to be recalled, instructions to be given, advice to be received and decisions to be taken, potentially on a number of occasions over the span of the proceedings as they develop.’

Therefore, whilst this decision sought to reduce the scope of understanding of the person to only the issues being litigated, it increased the depth of understanding required, and also the mental agility needed to be able to litigate.

This decision was soon followed by the case of Richardson-Ruhan v Ruhan & Ors [2021] EWFC 6, which examined whether a person’s Litigation Capacity could be contingent on them receiving legal advice. This case stated at that:

‘the capacity to conduct proceedings cannot depend on whether the party receives no legal advice, or good legal advice or bad legal advice. 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.’

 The key issue is whether the person would be capable of making necessary decisions with the benefit of legal advice, as if they would then they have Litigation Capacity, regardless of whether they have sought that advice or not. Importantly, this case also raised the important point that if a party is unrepresented then an adjournment for them to obtain legal advice is preferred to an adjournment for a Litigation Friend to be appointed.

The most recent case to consider this issue is that of Re P [2021] EWCOP 27 (30 April 2021). In this matter, the Court recognised that litigation can be difficult, procedurally complex, and ever changing, and stated that:

‘I am of no doubt that the level of capacity to conduct litigation is set relatively high.  Litigation, even so-called simple litigation, is a complex business.  For virtually every case the substantive law, to say nothing of the procedural rules, is a daunting challenge and can be a minefield’

Interestingly, the Court has confirmed in Re Q [2022] EWCOP 6 that it is possible for a person to have Litigation Capacity in respect of a matter but lack capacity to make a decision about the subject itself. That was the case in this matter, regarding treatment for bulimia nervosa. The patient was found to lack capacity to make treatment decisions, but have litigation capacity, and engaged with her legal team.

The Court stated that:

 ‘I have little doubt that an individual who lacks capacity to decide about medical treatment will frequently lack the capacity to litigate in a case where that is the sole or predominant subject matter. I have equally no doubt, however, that the proposition is not ubiquitous’

In summary, Litigation Capacity has a long a complex history in the Courts, and is constantly evolving. However, what is agreed is that litigation is complex and ever changing, and to have capacity to litigate requires a high level of cognition, reflection and understanding.

Upcoming seminar: Deputies and attorneys in civil litigation

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