Commercial litigation is often fast-paced, strategic, and driven by clear objectives. However, when a claimant is faced with a defendant or respondent who is vulnerable — particularly one who may lack mental capacity — the process can become frustratingly complex. Delays, uncertainty, and procedural hurdles can test the patience of even the most seasoned litigators and their clients.
Yet, frustration must not override fairness. The Civil Procedure Rules (CPR) and the Mental Capacity Act 2005 (MCA) impose clear obligations on parties and the court to ensure that vulnerable individuals are protected and can participate meaningfully in proceedings. Failure to comply with these obligations risks not only prejudice to the defendant but also serious procedural consequences for the claimant.
Understanding the Legal Framework
Protected Parties and Litigation Friends
Under CPR Part 21, a “protected party” is someone who lacks capacity to conduct proceedings. In such cases, a litigation friend must be appointed before any substantive steps are taken. The section 3 of the MCA provides the test for capacity, focusing on whether the individual can understand, retain, weigh, and communicate decisions relevant to the litigation.
Practice Direction 1A and the Overriding Objective
PD1A reinforces the court’s duty to ensure that vulnerable parties can fully participate in proceedings. This includes adapting procedures, allowing intermediaries, and considering split trials or stays where appropriate.
Claimant’s Duties and Procedural Risks
Claimants must be proactive in identifying potential vulnerability as proceeding against a defendant who lacks capacity without proper safeguards can result in:
- Orders being set aside.
- Costs sanctions or wasted costs.
- Breach of Article 6 European Convention of Human Rights (right to a fair trial).
- Reputational damage for the firm and the client
- Client dissatisfaction.
Recent case law, such as Masterman-Lister v Brutton & Co and CXC v Clarke & EUI Ltd, underscores the importance of early identification and appropriate accommodations.
In Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] Lloyd’s Rep Med 244, the Court decided that a person’s ability to take part in legal proceedings depends on the specific decision they’re facing, not just whether they have a medical condition. The claimant was found to have had enough understanding to settle his case, even though he had a brain injury.
In CXC v Clarke & EUI Ltd [2024] EWHC 3138 (KB), the Court looked at how to support a vulnerable claimant who had suffered brain injuries. It confirmed that tools like intermediaries, professionals who help people understand and take part in court, can be used in civil cases, not just criminal ones.
The key takeaway from these cases is that the Court expects parties to take extra care when someone involved in a case may not fully understand what’s happening.
Client Management: Balancing Strategy and Sensitivity
In some instances, clients may struggle to understand why litigation is delayed or why additional steps such as medical assessments or the appointment of a litigation friend are necessary. This is natural as they usually have an emotional attachment to the claim and do not perhaps understand the court process.
As such, as their lawyers, it is crucial that we manage their expectations from the outset, or as soon as it becomes apparent that there are capacity issues with the opposing party:
- Explain to the client on the legal obligations and risks of non-compliance.
- Frame the delays as protective measures that safeguard the integrity of the claim.
- Highlight reputational risks of pursuing litigation against a vulnerable party without due care.
- Document advice provided and decisions to ensure transparency and mitigate future disputes.
Ultimately, good client management in these cases is not just about legal compliance — it’s about maintaining trust, demonstrating professionalism, and protecting the client’s interests in the long term.
Practical Guidance for Claimants
- Investigate early: Look for signs of incapacity or vulnerability.
- Seek medical evidence: Don’t rely on assumptions.
- Appoint a litigation friend: Where required, ensure this is done before issuing or progressing the claim.
- Adapt procedures: Consider split trials, stays, or use of intermediaries.
- Engage with the court: Be transparent and cooperative in managing the case.
Litigants in Person: Additional Considerations
Litigants in person (LiPs) — individuals who represent themselves without legal counsel — present additional challenges in cases involving vulnerability or mental capacity. While the courts are increasingly mindful of access to justice for LiPs, claimants must take extra care to ensure that procedural fairness is maintained.
Where a defendant is both a LiP and potentially vulnerable, the risk of prejudice is heightened. They may not understand the nature of the proceedings, the implications of deadlines, or the need to respond to formal documents. This can lead to missed steps, default judgments, or unfair outcomes if the claimant does not act responsibly.
Claimants should consider the following:
- Flag concerns early: If there are signs of incapacity or vulnerability, raise them with the court promptly.
- Avoid tactical advantage: Proceeding aggressively against a LiP who may lack capacity can backfire, both procedurally and reputationally.
- Assist the court: The overriding objective under CPR Part 1 requires parties to help the court deal with cases justly. This includes ensuring vulnerable LiPs are not disadvantaged.
- Consider alternative dispute resolution (ADR): In some cases, mediation or other forms of ADR may be more appropriate and less stressful for vulnerable LiPs.
While claimants are entitled to pursue their claims efficiently, they must do so in a way that respects the rights and limitations of those who may be navigating the legal system without support, and potentially without full understanding.
Conclusion
Litigating against a vulnerable defendant is not just a procedural challenge, it’s a test of professional integrity.
While the process may be slower and more complex, it is essential to uphold the principles of fairness and access to justice. By complying with the rules and managing clients effectively, claimants can pursue their claims without compromising the rights of those who are least able to defend themselves.
Thinking about litigation? Let’s talk.
If you’re facing a dispute and unsure what your next step should be, speak to our experienced litigation team. We’ll explain your options clearly, work with you to find a strategy that fits your goals – and help you achieve the best possible outcome.
Craig Bennett is Legal Director in our expert Dispute Resolution and Insolvency team.
If you have any queries about the subjects discussed above, please do not hesitate to contact Craig or another member of the Commercial Dispute Resolution team in Derby, Leicester, or Nottingham on 0808 258 0461 or via our online enquiry form.