Central fund “may be needed” to resolve litigation capacity disputes

Clarke: Article triggered review

A “central fund of last resort” may be needed to pay for investigating and resolving disputes over whether litigants have mental capacity, a Civil Justice Council (CJC) working group has said.

The group also called for the courts to have a “quasi-inquisitorial role” in deciding what evidence was needed to determine capacity, instead of the “usual adversarial model” of parties submitting evidence.

In summer 2022, the CJC approved the creation of a working group to consider the procedure for determining mental capacity in civil proceedings.

It followed the publication of an article by one of the group’s co-chairs, barrister Daniel Clarke of Doughty Street Chambers, who identified shortcomings in the rules.

The group’s other co-chair is Diane Astin, a solicitor, consultant at Deighton Pierce Glynn and senior lecturer at Brunel University, as well as the CJC’s member for housing.

Under rule 21 of the Civil Procedure Rules, a ‘protected party’ lacks capacity under the Mental Capacity Act 2005 to conduct proceedings and must have a litigation friend to conduct them on their behalf.

In a consultation launched this week, the group said difficulties were “likely to arise” where neither legal aid nor another source of funding such as legal expenses insurance were available and where a party denied there was an issue as to their capacity and refused to pay investigation costs.

Where there was no other “feasible” option, the working group said “it may be necessary for a central fund of last resort to be created, to fund the investigation and determination of capacity to ensure compliance with article 6 ECHR and the common law right of access to justice”.

There was also “a strong case for non-means tested legal aid being made available to enable a determination of capacity to be made, given the fundamental nature of the rights at issue”.

The group said that for disputes over the issue of capacity the “usual adversarial model — of parties to a determination choosing what evidence and submissions to advance and the court adjudicating on these — is not an appropriate one”.

Instead, the role of the court “must be a quasi-inquisitorial one, in which the court takes responsibility for ensuring that, insofar as possible, it has the necessary evidence before it”.

The group said “some members” considered that clearer guidance was needed on the professional obligations of lawyers, and the threshold for triggering the duty to draw to the court’s attention a potential lack of capacity in a client.

Alongside this duty, the group as a whole agreed that “there must similarly be a duty to raise with the court any reasonable doubts” about the capacity of litigants in person, a duty which could extend beyond lawyers to their clients.

The group asked in the consultation what level of belief should trigger this duty and whether there should be any sanctions for a “clear failure” to raise the issue.

On mental capacity hearings, the group “was broadly in agreement that other parties (and non-parties) could, and should, be excluded from attendance at the hearing where this is necessary to protect the interests of the party whose capacity is in issue”.

However, when it came to anonymity orders and reporting restrictions, the group, bearing in mind the importance of open justice, “was not able to agree on whether there should be a general rule or presumption”.

The group agreed that the party themselves must have a right of appeal against court decisions but could not agree whether their lawyers should have some right of review, perhaps to another judge in exceptional cases.

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