The Civil Justice Council (CJC) recently published a report on the Procedure for Determining Mental Capacity in Civil Proceedings proposing changes to the system for determining issues of litigation capacity that will help make the civil justice system more accessible, fair, and efficient.
Current issue
The Civil Procedure Rules (CPR) sets out the procedure for the appointment of a litigation friend to conduct proceedings on behalf of a party who lacks capacity within the meaning of the Mental Capacity Act 2005. Neither the CPR nor its Practice Directions make any provision for cases in which a party’s capacity is in doubt:- how the issue is to be identified, investigated, or determined.
Recommendations
The CJC has made the following recommendations:
1. A clear procedure is needed for cases in which the Court is required to determine a party’s litigation capacity. This should be set out in CPR Part 21 and/or in a Practice Direction, to provide a clear, accessible and authoritative source to which parties, legal representatives and judges can turn. For instance, it should be made clear in the CPR/relevant Practice Directions that the parties have a duty to assist the Court in furthering the overriding objective by identifying and determining any issue as to the litigation capacity of any party;
2. The Court’s role must be a quasi-inquisitorial one, in which the Court is responsible for ensuring that it has the evidence it considers necessary to determine the issue, albeit that the work of gathering such evidence will necessarily be delegated to others;
3. The presumption of capacity remains an important starting point, but it must not be used to avoid proper investigation and determination;
4. Issues of litigation capacity should be identified and determined at the first available opportunity;
5. There should be clear power for the Court to order disclosure of evidence relevant to the issue of litigation capacity;
6. Once the Court has decided that an issue of litigation capacity requires determination, it should direct that no further steps be taken in the proceedings and that existing orders be stayed, pending determination of the issue. However, this should be subject to a power to order otherwise, based on a ‘balance of harm’ approach;
7. A party who is found to lack litigation capacity must have a right of appeal, which may require modifications to usual appeal procedures to ensure that it is effective; and
8. Proper funding must be made available for the investigation and determination of issues of litigation capacity, including the creation of a central fund of last resort.
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