Public Law Update, Part 3: Capacity and Urgency…

In a recent Landmark Chambers webinar, Fiona Scolding KC, Miranda Butler and Charles Bishop reviewed significant developments in public law procedure and practice in the previous months. This blog builds on the content of that webinar with the aim of providing practitioners with an update on recent case law and its implications.

In public law claims, as in all civil litigation, the Civil Procedure Rules (CPR) govern the circumstances in which persons who lack mental capacity can engage in litigation. A party or intended party who lacks capacity to conduct proceedings within the meaning of the Mental Capacity Act 2005 is known as a ‘protected party’, and requires a litigation friend to conduct proceedings on their behalf. Until a litigation friend is appointed, a person may not without the court’s permission take any steps in proceedings except for issuing and serving a claim form or applying for the appointment of a litigation friend under part 21 of the CPR. Any step taken in the litigation before a litigation friend has been appointed will have no effect unless the court orders otherwise.

The approach to be taken by the court to determine whether a person lacks capacity was recently summarised by the Court of Protection in North Bristol NHS Trust v R [2023] EWCOP 5. The relevant question in the statute is whether, at the material time, the person is unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain: Mental Capacity Act 2005, section 2(1). This generally requires evidence from a suitably qualified person, who would usually be a medical practitioner: Masterman-Lister v Brutton [2002] EWCA Civ 1889. However, no formal diagnosis of impairment is strictly required: Re Thirumalesh (dec’d) [2024] EWCA Civ 896 at §140.

If a legal representative has doubts as to their client’s litigation capacity, they are under a professional duty to resolve the issue as quickly as possible by investigating the issue for themselves and, if necessary (usually and in particular where the client disputes the suggestion of incapacity), raising the issue with the court: see RP v Nottingham CC [2008] 2 FLR 1516.

Issues can arise where a step needs to be taken in proceedings but lawyers have doubts about a client’s capacity. Ordinarily, the lawyers would try to obtain a capacity assessment as soon as possible. However, this might not be possible because of the urgency of the matter, a lack of funding to obtain such evidence or lack of cooperation by the client.

Where those factors are not in play, the party’s representatives would apply to adjourn the hearing until the capacity issue could be resolved with medical evidence. However, if a claimant lacking capacity were to be required to obtain medical evidence before relief could be secured, the claimant would potentially be deprived of an opportunity to seek interim relief at a sooner date, simply because of their mental capacity. Such a course of action could produce particularly harsh consequences in the context of urgent applications, such as homelessness judicial reviews and deportation injunctions.

There is, here, a gap in the CPR: there is no provision which provides for a process for determining capacity. While a specific power exists to make interim declarations as to capacity in the Court of Protection under section 48 of the Mental Capacity Act 2005, this provision does not extend outside the Court of Protection. The Civil Justice Council set up a working group to review this problem, which reported in November 2024. They said:

“1.1 The issue of whether an adult party to court proceedings has the mental capacity to conduct the proceedings (“litigation capacity”) is one of fundamental importance. Under the Civil Procedure Rules (CPR) a person who lacks litigation capacity is a ‘protected party’ and must have a ‘litigation friend’ appointed to conduct the litigation on their behalf. If it is wrongly decided that the party lacks capacity, the appointment of a litigation friend to take decisions on their behalf will represent a significant infringement of their personal autonomy. If it is wrongly decided that the party has capacity and can conduct the proceedings for themselves, they may be denied meaningful access to justice.

1.2 Although CPR Part 21 sets out the procedure applying to protected parties, neither the CPR nor its Practice Directions (PDs) set out any procedure for determining whether a party lacks litigation capacity. The Court of Appeal recommended more than 20 years ago[1] that consideration be given to addressing this gap, but that does not appear to have happened and no action has been taken.”

Until changes are made to the CPR, one option available to a practitioner in such circumstances may be to seek an order appointing a litigation friend on an interim basis. This was the approach taken by the Family Court in CS v FB [2020] EWHC 1474 (Fam). There, an interim order was made to allow the Official Solicitor to be instructed in a family law matter.

While there is no reported case of such an order being made under the CPR, on 12 November 2024, Michael Ford KC, sitting as a Deputy High Court Judge, ordered the interim appointment of a litigation friend in an urgent homelessness matter, with the claimant then sleeping rough. The urgency of the case was such that it was impossible to obtain a mental capacity assessment in time before a hearing on whether to grant interim relief in the form of housing. The claimant attended court and was asked questions by her counsel and by the judge, which allowed the judge to reach a provisional view as to capacity.

While unreported, the decision may provide reassurance to judges of the workability of this approach going forward – as well as be of critical assistance to claimants.

This article is written by Charles Bishop, who acted for the claimant in the hearing before Michael Ford KC.

You can watch the full webinar recording here.

[1] Masterman-Lister v Brutton [2003] 1 WLR 1511, Kennedy LJ at §17.