This judgment was handed down remotely at 10.30am on 8 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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LORD JUSTICE BAKER :
- This is a second appeal against the order of HHJ Saggerson, dated 8 February 2023, dismissing an appeal against an order made by Deputy District Judge Althaus, dated 15 December 2021. The issue on which permission to appeal has been granted is whether the order should be set aside on the grounds that the appellant, Mr Kenneth Johnston, lacked capacity at the material time to conduct proceedings. In addition, there are further grounds of appeal on which the question whether permission to appeal should be granted was adjourned to be determined at the full hearing.
- This appeal was listed to be heard with a separate appeal brought by the same appellant in proceedings against the London Borough of Islington which raised similar issues. In the event, that appeal was compromised shortly before the hearing.
Background
- The relevant background to the present appeal is as follows.
- Mr Johnston has a longstanding history of depression and other mental health issues, and has attempted suicide on several occasions. It is his case that he is entitled to the statutory protection provided to a person with disabilities under the Equality Act 2010 ("the Equality Act"). Sections 4 and 6 identify disability as a protected characteristic. Under section 15(1),
"A person (A) discriminates against a disabled person (B) if—
(a) A treats B unfavourably because of something arising in consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim."
- Sections 20 and 21 and the schedules to the Equality Act impose a duty in certain prescribed circumstances to make reasonable adjustments for a disabled person. Section 29(1) imposes a duty on a person concerned with the provision of a service to the public not to discriminate against a person requiring the service by not providing the person with the service. Section 149 imposes a series of obligations on public authorities (called collectively the "public sector equality duty"), including the obligation to have regard to the need to "advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it". But schedule 3 paragraph 3 and schedule 18 paragraph 3 provide respectively that section 29 and section 149 do not apply to a judicial function or anything done on behalf of, or on the instructions of, a person exercising a judicial function. A "judicial function" is defined in both schedules as including a reference to a judicial function conferred on a person other than a court or tribunal.
- The Financial Ombudsman Service ("the FOS") is a public body, established pursuant to Part XVI of the Financial Services and Markets Act 2000 ("the 2000 Act"). In broad terms, its statutory function is to administer and operate an independent and informal complaint resolution procedure for the financial services industry without the need for litigation. Under section 226, certain institutions authorised by the Financial Conduct Authority are required to submit to the jurisdiction of the scheme ("the compulsory jurisdiction"). Schedule 10 to the 2000 Act provides at paragraph 17:
"(1) No person is to be liable in damages for anything done or omitted in the discharge, or purported discharge, of any functions under this Act in relation to the compulsory jurisdiction.
(2) Sub-paragraph (1) does not apply—
(a) if the act or omission is shown to have been in bad faith; or
(b) so as to prevent an award of damages made in respect of an act or omission on the ground that the act or omission was unlawful as a result of section 6(1) of the Human Rights Act 1998."
- Between 2012 and 2019 Mr Johnston made several complaints to the FOS about his mortgage with Santander Bank. On 23 December 2019, the FOS issued a final determination on his most recent complaint. It upheld the complaint, gave certain directions to Santander (which it is unnecessary to set out for the purposes of this appeal), and ordered the bank to pay Mr Johnston £500 in compensation.
- Meanwhile, Mr Johnston had complained that the FOS had acted in breach of the Equality Act by failing to make reasonable adjustments. His complaint was considered by an independent assessor under the FOS's internal complaints procedure. On 5 August 2020, the assessor wrote to Mr Johnston dismissing the complaint.
- On 17 December 2020, Mr Johnston issued a civil claim against the FOS, on the basis that the FOS had discriminated against him, "an individual with mental ill-health disabilities and history of suicide attempts". He contended that the FOS:
(1) had failed to comply with the anticipatory duty to make reasonable adjustments, and therefore discriminated against him contrary to s. 21(2) of the Equality Act, and
(2) was in breach of its obligations under ss.15 and 149 of the Equality Act by failing to take steps to meet the needs of disabled persons.
- On 1 February 2021, the FOS filed an acknowledgement of service indicating that it intended to defend the claim.
- On 24 February 2021, the FOS filed an application to strike out the claim and/or for summary judgment.
- On the following day, 25 February 2021, Mr Johnston filed a second claim against an individual solicitor employed by the FOS, alleging that she
(1) had harassed him in contravention of the Protection from Harassment Act 1997 and ss. 20 and 26 of the Equality Act, in light of his protected status under s. 6(1) of that Act, and
(2) was in breach of the same sections of the Equality Act as the Ombudsman as claimed in the first action.
- On 30 March 2021, the FOS filed an application (1) to strike out the claim against the solicitor and/or for summary judgment or alternatively (2) for substitution of the defendant and consolidation with the first claim and the application therein for strike out and/or summary judgment.
- A telephone hearing was listed on 16 June 2021. Prior to the hearing, Mr Johnston sent a number of emails asking for reasonable adjustments to be provided to assist him at the hearing, citing passages from the Equal Treatment Bench Book. At the hearing, DDJ Greenidge consolidated the two claims and substituted the FOS as the defendant to the second claim. He also allowed Mr Johnston's application for the hearing to be adjourned. The order made following the hearing included recitals (1) that Mr Johnston had applied for an adjournment because the court staff had refused to allow a McKenzie friend to attend the hearing; (2) that Mr Johnston's named McKenzie friend was unable to attend the hearing and (3) that the court had refused an application by Mr Johnston for an assessor to be appointed.
- On 14 December 2021, the adjourned hearing of the applications to strike out the claims and/or for summary judgment was listed before DDJ Althaus. Prior to the hearing, Mr Johnston sent two further emails to the court requesting reasonable adjustments. With the second email, he included a skeleton argument for the hearing. At the hearing, he represented himself, accompanied by a McKenzie friend and by his partner.
- A transcript of the hearing has been included in the papers for this Court. Through its counsel, the FOS put forward five grounds in support of its application. First, it was argued that there was an absolute bar to both claims by virtue of schedule 17, paragraph 10 of the 2000 Act. Secondly, it was contended that, in relation to the matters complained of, the FOS had been "exercising a judicial function or the equivalent". In those circumstances, in relation to claims under sections 29 and 149 of the Equality Act, it had the benefit of the exemption in paragraphs 3 of schedules 3 and 18 of that Act. Thirdly, it was argued that the claims were incoherent and not supported by properly pleaded particulars of claim. Fourthly, it was submitted that there was no merit in either claim. Finally, it was said that the claim brought against the individual solicitor employed by the FOS was an abuse of process. In the course of his submissions, Mr Johnston said that he was "completely baffled" by the FOS's argument on immunity. He described his claim as being about the fact that, in bringing forward his complaint about Santander, the FOS had not provided him with reasonable adjustments "so I could put over the actual complaint in the appropriate manner". From the transcript it seems that there was no reference to the question of reasonable adjustments for Mr Johnston at the hearing.
- After hearing submissions, the deputy district judge delivered judgment. On the first ground, he accepted the FOS's argument. He described schedule 17 paragraph 10 as giving, "in the case of its compulsory jurisdiction, statutory immunity to the Defendant in a claim for damages". He continued (at paragraph 20 of his judgment):
"These are claims to which, in my judgment, the statutory immunity applies and, unless they fall within one of the exceptions set out in paragraph 10, they are bound to fail. Mr Johnston has mentioned to me in the course of argument the question of whether he is the victim of an infringement of a Convention right; but, whether that is so or not, I am simply dealing with the claims that have been presented to me and they do not assert either that the defendant has acted in bad faith, which is the first exception, or that anything it has done or not done was unlawful as a result of section 6(1) of the Human Rights Act. In other words, it is not part of Mr Johnston's case that the FOS has acted in a way which is incompatible with a Convention right."
- The deputy district judge observed that this would be enough to dispose of both claims, but "for the sake of completeness" proceeded to consider the other four grounds raised on behalf of the FOS. In respect of the second ground, he accepted the argument advanced on behalf of the FOS that, in relation to the matters complained of, it had been "exercising a judicial function or the equivalent and therefore had the benefit of the statutory exemptions claimed". In respect of the third ground, he accepted the FOS's submission that the way in which Mr Johnston's claims had been presented was "incoherent". He found that the allegations of breach of duties were not underpinned by any proper factual assertions in the claim forms. In respect of the two remaining grounds, he concluded that it was unnecessary to make any decision, given his conclusions on the first three grounds.
- On that basis, the deputy district judge ordered that both claims be struck out and that Mr Johnston pay the FOS's costs, summarily assessed at £8,458. He refused an application by Mr Johnston for permission to appeal, but extended the time for filing an appeal notice by 14 days "upon the court considering the claimant's disability and the Christmas period". The order also included a recital "that the claims are totally without merit but that a civil restraint order is not appropriate."
- On 29 December 2021, Mr Johnston filed a notice of appeal against the deputy district judge's order. The document setting out the three grounds of appeal has not been included in the papers filed with this Court. As subsequently summarised by HH Judge Saggerson in his judgment, the grounds were: (1) the FOS was not exercising a judicial function and therefore the exemption in paragraphs 3 and 18 of the 2010 Act did not apply; (2) there is no absolute bar to, or statutory immunity against damages claims against the FOS for breach of the 2010 Act pursuant to schedule 17 paragraph 10 of the 2000 Act or otherwise, and (3) the pleaded case disclosed reasonable grounds for bringing the claim and/or there was some other compelling reason for the matter to be disposed of at trial. On 21 March 2022, HH Judge Parfitt granted permission to appeal and stayed the order for costs pending appeal.
- The appeal was listed before HH Judge Saggerson on 6 July 2022, but adjourned, apparently because only 30 minutes had been allocated to the hearing. On 19 July 2022, Mr Johnston filed an application to amend his grounds of appeal by adding a fourth ground which, as subsequently expressed in HH Judge Saggerson's judgment, was in the following terms:
"It was wrong and/or unjust for the matter to be struck out without the appellant being able to provide further particulars to cure any deficiencies in his pleadings. Accordingly, the judge should have granted an adjournment."
- On 2 February 2023, the appeal hearing resumed. A transcript of this hearing has also been provided for the present appeal. On this occasion, Mr Johnston was represented by counsel, Mr Farhan Asghar. After hearing submissions on the application to amend the grounds, the judge adjourned briefly and then returned to deliver judgment. He concluded that "it would be inappropriate, unfair and contrary to all the component features of the overriding objective" to allow the application to amend, for several reasons. First, he pointed out that the application to amend had been made very late – some days after the date on which the appeal had been due to be heard. Secondly, he noted that, even at the date of the adjourned hearing of the appeal, no draft particulars of claim had been produced. Thirdly, he held that the proposal that there should be a further adjournment to allow particulars of claim to be filed, with the claim to be struck out automatically in default "was likely to cause more problems than it solves". Fourthly, he rejected the argument that the deputy district judge's finding as to the incoherence of the claim had been fettered by his earlier finding as to legal immunity and the statutory exemptions under the 2010 Act.
- After judgment, Mr Johnston's counsel said:
"in light of your judgment, I do have to accept that I can't properly argue the remaining points and the appeal must, will, will have to stand dismissed."
There followed submissions on costs, after which the judge delivered a short supplementary judgment giving his reasons for deciding that Mr Johnston should pay the costs of the appeal.
- Following the hearing, an order was drawn, dated 8 February 2023, providing that (1) the application to amend the grounds of appeal was refused; (2) dismissing the appeal; (3) ordering Mr Johnston to pay the FOS's costs of the appeal, summarily assessed at £8,650, within 14 days, and (4) lifting the stay of execution on the deputy district judge's costs order and ordering Mr Johnston to pay those costs also within 14 days.
- On 23 February 2023, Mr Johnston filed a notice of appeal against the order refusing permission to amend the grounds and dismissing the appeal. At that stage, he was acting in person. The document entitled "grounds of appeal" consisted of a narrative account extending to 40 paragraphs. From these, the grounds can fairly be summarised under two headings as follows:
(1) The FOS accepted on its website that it had a duty under the 2010 Act to make reasonable adjustments for individuals with disabilities where they are at a substantial disadvantage in accessing its service compared with people without disabilities. The failure to provide reasonable adjustments in the course of its engagement with Mr Johnston, when gathering information and investigating his complaints, was not covered by any statutory immunity or exemption under the Act.
(2) The hearing before the deputy district judge was unfair because of a failure to make reasonable adjustments to accommodate Mr Johnston's known vulnerabilities. In December 2021, Mr Johnston had sent two emails to the court office requesting a discussion on reasonable adjustments. In the circumstances, the court ought to have held a "ground rules" hearing or case management discussion to meet his needs.
- On 31 March 2023, the FOS filed a statement of reasons for opposing the granting of permission to appeal.
- On 9 July 2023, Dr Rajnish Attavar, consultant psychiatrist at the Ellesmere Clinic in London, completed an assessment of Mr Johnston's mental capacity. The details of this assessment, and the documents summarised in the three following paragraphs, are considered below.
- On 1 September 2023, Dr Attavar signed a certificate stating that Mr Johnston lacked capacity to conduct proceedings, and moreover had lacked that capacity since 2010.
- On 19 September 2023, Mr Johnston was assessed by Dr Ranga Rao, consultant psychiatrist at the Priory Hospital in Woking, who on 23 September 2023 sent a report on the assessment to Mr Johnston's GP.
- On 14 March 2024, Mr Johnston was seen again by Dr Rao who on that date sent a further letter to his GP, stating that the purpose of the appointment had been to assess Mr Johnston's capacity to conduct proceedings and enclosing a certificate stating that he had capacity to conduct proceedings.
- On 22 March, Mr Johnson filed an application for an extension of time for his newly-instructed barrister, Mr Daniel Matovu, to file a skeleton argument in support of the application for permission to appeal. An extension was granted until 11 April.
- On 20 May 2024, an amended notice of appeal with amended grounds was filed seeking to rely on an additional ground:
"The Order of Deputy District Judge Althaus made on 15 December 2021 should be set aside and there should be a complete retrial on the basis that the Appellant was at all relevant times a protected party within CPR 21.1(2)(d) and did not have a litigation friend."
On 30 May, the Civil Appeals lawyer granted permission to amend the appeal notice.
- On 26 September 2024, Lewison LJ made an order:
(1) granting Mr Johnston permission to rely on Dr Attavar's assessment;
(2) granting permission to appeal on the additional ground set out above;
(3) adjourning all other grounds to the hearing of the appeal, and
(4) staying execution of the judge's order pending appeal.
- In setting out his reasons for so ordering, Lewison LJ noted that the assertion of lack of capacity was supported by Dr Attavar's assessment. He continued
"Although he appears now to have regained capacity, he lacked capacity during the whole pendency of the proceedings below. If he lacked capacity as alleged, he ought to have had a litigation friend. Dr Attavar's assessment was not available below, and I grant permission for it to be relied on …. Where a person ought to have a litigation friend but does not, then any step taken before the appointment of a litigation friend is of no effect. In other words, all order[s] made are nullities, and if made are retrospectively invalidated: Dunhill v Burgin [2014] 1 WLR 943, MTA v Lord Chancellor [2024] EWCA Civ 965. Although this point does not appear to have been raised before the lower court, it is of sufficient importance as to be a compelling reason for the Court of Appeal to hear an appeal on that ground."
On the challenge in the appeal notice to the fairness of the court proceedings before the deputy district judge, Lewison LJ observed that
"the lack of a ground rules hearing means that it is at least arguable that the decision of the DDJ was unjust because of a serious procedural irregularity. Nevertheless, the absence of a ground rules hearing was not raised in the first appeal to the circuit judge in which the Appellant was represented by counsel. Normally an appellant is not permitted to raise on a second appeal a point that was not raised on the first appeal. But in view of the doubts about the appellant's capacity at the time I will not refuse permission to appeal, but will adjourn the application to appeal on that ground to the hearing of the appeal."
On the challenge in the grounds of appeal to the decision on the scope of statutory immunity, Lewison LJ observed:
"This is a question of statutory interpretation of some importance with real prospects of success. However, it is clear from the transcript of the hearing before the circuit judge that once the judge had ruled against allowing an amendment the appellant's counsel abandoned that challenge. Normally a decision of that kind is within the authority of counsel and a third party is entitled to rely on the decision unless aware of the principal's incapacity. Again this is linked to the overarching allegation of incapacity, and I adjourn this ground of appeal to the hearing of the appeal."
- On 11 October 2024, the FOS filed a respondent's notice contending that the order of HHJ Saggerson below should be upheld (a) for the reasons he gave, and (b) on the basis that Mr Johnston has not established that he lacked capacity to conduct this claim at the material time. In the alternative, the FOS argued that, pursuant to CPR 21.3(4), 'any step taken before a child or protected party has a litigation friend has no effect unless the court orders otherwise' (as considered in Dunhill v Burgin [2014] UKSC 18, at para 19). The Court has a discretion not to retrospectively invalidate steps taken before a protected party has a litigation friend. The FOS invited this Court to exercise that discretion in this case because (a) it acted in good faith, (b) Mr Johnston was legally represented at the material times, and (c) retrospective invalidation of the entire set of stages in the proceedings is contrary to the public interest and the overriding objective.
The law relating to capacity – the rules and statutory provisions
- Under CPR rule 21.2, a "protected party" must have a litigation friend to conduct proceedings. "Protected party" is defined in rule 21.1 as "a party, or intended party, who lacks capacity within the meaning of the Mental Capacity Act 2005 to conduct proceedings". Under rule 21.3(4), "any step taken before a … protected party has a litigation friend has no effect unless the court orders otherwise."
- The relevant statutory provisions in the Mental Capacity Act 2005 ("MCA 2005") are as follows.
"1. The principles
(1) The following principles apply for the purposes of this Act.
(2) A person must be assumed to have capacity unless it is established that he lacks capacity.
(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.
2. People who lack capacity
(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack of capacity cannot be established merely by reference to -
(a) a person's age or appearance, or
(b) a condition of his, or an aspect of his behavior, which might lead others to make unjustified assumptions about his capacity.
(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.
(5) No power which a person ("D") may exercise under this Act—
(a) in relation to a person who lacks capacity, or
(b) where D reasonably thinks that a person lacks capacity,
is exercisable in relation to a person under 16.
(6) Subsection (5) is subject to section 18(3).
3. Inability to make decisions
(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable—
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of—
(a) deciding one way or another, or
(b) failing to make the decision."
The law relating to capacity – case law
- The correct approach to be adopted by a court when assessing whether a person lacks capacity was considered by the Supreme Court in A Local Authority v JB [2021] UKSC 52, [2022] AC 1322. Although the factual context was different, the approach is applicable across all areas of capacity. At paragraphs 66 to 79, Lord Stephens JSC, with whom the other Justices agreed, said:
"66. Section 2(1) requires the court to address two questions.
67. The first question is whether P is unable to make a decision for himself in relation to the matter. As McFarlane LJ stated in York City Council v C [2013] EWCA Civ 478 at para 37, "the court is charged in section 2(1), in relation to 'a matter', with evaluating an individual's capacity 'to make a decision for himself in relation to the matter'." The focus is on the capacity to make a specific decision so that the determination of capacity under Part 1 of the MCA 2005 is decision-specific ….
68. As the assessment of capacity is decision-specific, the court is required to identify the correct formulation of "the matter" in respect of which it must evaluate whether P is unable to make a decision for himself: see York City Council v C at paras 19, 35 and 40.
69. The correct formulation of "the matter" then leads to a requirement to identify "the information relevant to the decision" under section 3(1)(a) which includes information about the reasonably foreseeable consequences of deciding one way or another or of failing to make the decision: see section 3(4).
70. I consider, and the Court of Appeal in this case held at para 48, that the court must identify the information relevant to the decision "within the specific factual context of the case": see also York City Council v C at para 39 ….
…
75. On the other hand, there should be a practical limit on what needs to be envisaged as the "reasonably foreseeable consequences" of a decision, or of failing to make a decision, within section 3(4) of the MCA …. To require a potentially incapacitous person to be capable of envisaging more consequences than persons of full capacity would derogate from personal autonomy.
….
78. If the court concludes that P is unable to make a decision for himself in relation to the matter, then the second question that the court is required to address under section 2(1) is whether that inability is "because of" an impairment of, or a disturbance in the functioning of, the mind or brain. The second question looks to whether there is a clear causative nexus between P's inability to make a decision for himself in relation to the matter and an impairment of, or a disturbance in the functioning of, P's mind or brain.
79. The two questions under section 2(1) are to be approached in that sequence."
- There are three further relevant general principles, identified in my judgment in A Local Authority v P [2018] EWCOP 10 at paragraph 15, cited by Lewis LJ in his judgment in Cannon v Bar Standards Board [2023] EWCA Civ 278 (considered below). First:
"Capacity is both issue-specific and time-specific. A person may have capacity in respect of certain matters but not in relation to other matters. Equally, a person may have capacity at one time and not at another. The question is whether at the date on which the court is considering the question the person lacks capacity in question."
Secondly,
"In assessing the question of capacity, the court must consider all the relevant evidence. Clearly, the opinion of an independently instructed expert will be likely to be of very considerable importance, but as Charles J observed in A County Council v KD and L [2005] EWHC 144 (Fam) [2005] 1 FLR 851 at paras 39 and 44, "it is important to remember (i) that the roles of the court and the expert are distinct and (ii) it is the court that is in the position to weigh the expert evidence against its findings on the other evidence… the judge must always remember that he or she is the person who makes the final decision."
Thirdly,
"The court must avoid the "protection imperative" – the danger that the court, that all professionals involved with treating and helping P, may feel drawn towards an outcome that is more protective of her and fail to carry out an assessment of capacity that is detached and objective: CC v KK [2012] EWHC 2136 (COP)."
- Prior to the implementation of the MCA 2005, the leading common law authority on capacity to conduct proceedings was Masterman-Lister v Brutton and Co and another [2002] EWCA Civ 1889 in which Chadwick LJ said, at paragraph 75:
"For the purposes of … CPR 21 - the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law – whether substantive or procedural – should require the interposition of a next friend or guardian ad litem (or, as such a person is now described in the Civil Procedure Rules, a litigation friend)."
- An example of the application of the MCA 2005 principles to a decision whether a person lacks capacity to conduct litigation is the judgment of Burnett J (as he then was) in V v R [2011] EWHC 822 (QB). Having set out the statutory provisions, the judge said (at paragraph 10):
"It is common ground in these proceedings that the claimant suffers from an impairment or disturbance in the functioning of the mind or brain. The question is whether she is unable to make decisions for herself in connection with the litigation. In considering that broad question, the statutory scheme requires the presumption of capacity to be displaced on the balance of probabilities. The principles in section 1 distinguish capacity to make a decision from the wisdom of a decision made. The principles also require that all practicable steps are taken to help the person concerned make the relevant decision. The underlying policy of the Act is to avoid concluding that incapacity is established unless, after careful enquiry, it is necessary to do so. That is underpinned by the various cautions found in the Act relating to age, appearance and behaviour, by the requirement to convey information in a way appropriate to the individual's circumstances, and by the recognition that retention of information for but a short period may be sufficient for the purposes of establishing capacity. The underlying policy of the Act is unsurprising and reflects the earlier common law approach very substantially, given that the finding of incapacity in any environment substantially curtails the individual's right of action. In the context of litigation, a finding of incapacity curtails the right of unimpeded access to the law."
In that case, having carefully considered the medical and other evidence, Burnett J concluded (paragraph 34) that the claimant had "difficulties rather than a straightforward inability to weigh the evidence and make relevant decisions". He concluded that those difficulties were "capable of being ameliorated, if not entirely overcome, by the careful and structured support that the statute contemplates". In those circumstances, he was not satisfied on the balance of probabilities, that the claimant was unable to use and weigh information as part of the process of making litigation decisions. He therefore refused the application for a declaration that she lacked capacity to conduct the litigation.
- In this case, the Court is considering Mr Johnston's capacity over a number of years. In Public Guardian v RI and Others [2022] EWCOP 22, a case concerning a donor's capacity to execute a lasting power of attorney, Poole J observed (at paragraph 27):
"… Ideally, where there is a dispute about past capacity which the court is required to determine, it would be helpful to have evidence as to,
a. The certificate provider's experience …
b. Evidence from carers and family members …
c. Medical evidence, capacity assessments, assessments for benefits, records from carers or activity centres, or other professional evidence roughly contemporaneous with the relevant date …
d. An assessment by a suitably qualified and experienced person of P's current capacity and reasoned opinion as to their capacity … at the relevant time, such opinion being informed by review of relevant medical records, contemporaneous assessments, and the evidence from carers and family members."
- In Cannon v Bar Standards Board [2023] EWCA Civ 278, the appellant sought to appeal against findings of a professional disciplinary tribunal, contending amongst other grounds that she lacked capacity to conduct litigation at the time of the tribunal proceedings. Lewis LJ, in a judgment with which the rest of the Court agreed, noted (at paragraph 25) that the psychiatric reports on which the appellant relied did not address the test, or all the relevant factors, for assessing capacity, that the psychiatrist had access to some but not all of the appellant's medical records, and had not addressed the various actions the appellant had undertaken in relation to the disciplinary proceedings in order to consider whether she was able to understand, retain use, or weigh the relevant information. The psychiatrist's opinion amounted simply to an assertion that because the appellant had post-traumatic stress disorder, she lacked capacity. Lewis LJ concluded (paragraph 27) that the medical evidence did "not itself provide a proper evidential basis for rebutting the presumption that the appellant had capacity to take the decisions necessary to enable her to participate" in the proceedings. He added, at paragraph 34, that there was a difference between questions of capacity and the fairness of proceedings and that a party may have vulnerabilities arising from underlying mental health conditions which required adjustments to ensure that proceedings are fair. In that case, however, there had been no challenge to the fairness of the proceedings before the tribunal.
The medical evidence
- Lewison LJ's order permitted Mr Johnston to rely on Dr Attavar's assessment. In order to reach a decision on the ground of appeal relating to capacity, it is necessary to consider all of the evidence now filed and identified above. That evidence discloses the following information relevant to this appeal.
- In his report dated 9 July 2023, Dr Attavar stated that he had been instructed by Mr Johnston. He listed the following questions on which his opinion had been sought:
(a) Does Mr. Johnston have capacity to conduct legal proceedings by himself without a legal representative?
(b) Does Mr. Johnston have capacity to conduct legal proceedings by himself, without a legal representative, with any special measures in place? If so, what measures?
(c) Does Mr. Johnston have capacity to conduct legal proceedings with the assistance of a legal representative?
(d) Does Mr. Johnston have capacity to instruct a legal representative to act for him in his legal affairs?
- Dr Attavar stated that he had reviewed the medical reports supplied to him by Mr Johnston for the purposes of this assessment. Apparently on the basis of those documents, he summarised Mr Johnston's medical history in the following terms. In 2010, after reporting headaches and impairment of vision, Mr Johnston underwent an MRI examination from which the specialist had "queried in his report whether Mr Johnston had previous haemorrhage to the pituitary lobe". An entry in his GP records the following month recorded that he had "a diagnosis of pituitary haemorrhage". Later that year, he was treated by mental health professionals after "two significant attempts to hang himself". Dr Attavar did not cite anything further from any medical records between 2010 and 2016, when Mr Johnston was diagnosed with a personality disorder and referred for longer term psychological therapy and, later that year, described as presenting with low mood suicidal thoughts. The only additional citation from the records was an entry in July 2021: he "has a diagnosis of depression due to life stresses, he is unable to sleep and function in the day".
- Having interviewed Mr Johnston, Dr Attavar reported:
"I can confirm that since 2009 he has had neurological and psychiatric issues which have affected his mental health. Furthermore, the legal proceedings against him make him anxious and he experiences panic episodes. When he is in a heightened state of anxiety, he is not able to process all the information presented to him, as a result he may not be processing the subtleties and nuances of the case.
During the interview I found him to be tearful, anxious, and depressed. I also noted that he reported eight attempts at suicide, these date back from 2010 through to 2021. Due to the risk of suicide, he has had input from the NHS and psychological services."
- In response to questions (a) and (b), Dr Attavar said:
"Mr Johnston does not have capacity to conduct legal proceedings by himself, without a legal representative; even with special measures in place."
In response to question (c), he said:
"I believe Mr. Johnston needs the assistance of legal representative to support him in his case and has capacity to conduct legal proceedings with the assistance of a legal representative and special measures."
He then listed a series of adjustments which could be used, including providing documents in an accessible format, giving extra time to process information, avoiding legal terminology or jargon, and sending text messages a few hours before sending an email to help reduce his level of anxiety or stress. In response to question (d), he said:
"I believe Mr. Johnston does have the capacity to instruct a lawyer to act for him in his legal affairs."
He added that he had "assessed Mr Johnston's mental capacity in accordance with the principles in the MCA 2005 and the relevant case law, Banks vs Goodfellow (1870) for testamentary capacity." He cited some of the provisions of sections 2 and 3 of the MCA 2005.
- The "certificate as to capacity to conduct proceedings" dated 1 September 2023 signed by Dr Attavar was on a standard form which consisted of printed statements, with instructions to delete or give details as appropriate, and boxes for comments to be inserted. The form included a space for identifying the proceedings, but on this certificate that space was left blank. In part 1 of the form, the date on which Dr Attavar had last assessed Mr Johnston was given as 1 September 2023. Dr Attavar left undeleted the statement that he "lacked capacity (within the meaning of the Mental Capacity Act 2005) to conduct the proceedings" and deleted the statement to the contrary.
- The form continued: "If the person lacks capacity to conduct the proceedings, please complete Parts 2 to 9." Those parts contained printed sentences, some with tick boxes, under which spaces were left for further details which were completed by Dr Attavar in manuscript. Part 2 started with the sentence: "The person concerned lacks capacity to conduct the proceedings described below/or in the letter of instruction". In the following box, Dr Attavar wrote: "please see the psychiatric report on 9 July 2023". The next sentence "The person is unable to understand the relevant information" was ticked and the following details written in the box underneath: "Mr Johnston has severe anxiety, depression, PTSD and suicidal thought and ideations, He has had pitutary [sic] haemorrahge [sic], (bleed in his brain 2009-2010) and was treated in Charing Cross hospital". The sentence "The person is unable to retain the relevant information" was ticked and the following details added: "severe anxiety, panic and PTSD resut [sic] in not able to understand information during trial or if the information is given in a not easy to read format. He needs reasonable adjustment and litigation friend". The sentence "The person is unable to use or weigh the relevant information as part of the process of making decisions in the conduct of the proceedings" was ticked and the following comment added: "He panics and catastrophises the information, so he gets worried and has suicidal ideation when stressed or not supported during trial". The sentence "The person is unable to communicate their decisions (whether by talking, using sign language or any other means)" was also ticked, with the additional comment: "He becomes overwhelmed and is not able to communicate fully or may answer the wrong question or supply unrelated information".
- Part 3 of the form comprised the question: "What support was given to the person to help them understand the relevant information (including giving an explanation in a way that is appropriate to their circumstances)?" In response, Dr Attavar wrote: "He needs litigation friend and reasonable adjustment (Equal Treatment Bench Book is helpful in supporting a person with mental health disability and brain injury.)" Part 4 stated: "The person lacks capacity to conduct the proceedings because of the following impairment of, or disturbance in the functioning of the mind or brain." In the following box, Dr Attavar wrote: "Brain injury due to pitutary [sic] haemorrage [sic] (2010) depression, PTSD, anxiety, suicidal attempts 2010 – 2021". Next to the words on the form "this has lasted since", Dr Attavar wrote "2010".
- Part 5 of the form comprised the question: "Do you consider that the person concerned might regain or develop capacity to conduct the proceedings in future?" Dr Attavar ticked the box "no" and gave the following reasons: "He has had a brain injury and he is still seen at Charing Cross hospital on 18 September by the neurologist". Part 6 of the form contained the question: "If in your opinion the person lacks capacity to conduct the proceedings, is the person nonetheless able to discuss the proceeding?" Dr Attavar ticked the box "yes" and added: "(1) Yes in a quite [sic] room away from court area (2) with reasonable adjustment (3) with litigation friend". In response to the question in Part 7, "If so, is such discussion likely to affect the person detrimentally and if so in what way?", he wrote: "Yes, some of his court proceeding can trigger suicidal thought from anxiety. He will need help from the NHS crisis team or Priory Hospital.". In response to the question in Part 8 "Has the person concerned made you aware of any views in relation to the proceedings and/or in relation to their capacity to conduct proceedings?", he wrote: "The proceeding has been affecting his mental health, his sleep is poor and he has had episodes of extreme anxiety." Finally under "Any additional comments", Dr Attavar wrote: "please see report of the 9th of July regarding reasonable adjustment and how best support litigation".
- Dr Rao's report dated 26 September was based on an assessment carried out on 19 September, that is to say eighteen days after the date on which, according to the certificate summarised above, Mr Johnston was seen by Dr Attavar. Dr Rao's report contained a more detailed description of his personal background and medical history. There was no direct reference to the question of his mental capacity. The report concluded with the following summary:
"Kenny is a 53 year old male living with his partner, has a history of mental health problems for the past 14 years. Over the years he has had depressive symptoms, anxiety symptoms and mood fluctuations. He has also had PTSD symptoms and has been in conflict with authorities where he has pursued legal action.
Considering the foregoing, longitudinal history and significant trauma in his childhood …, in my opinion Kenny's problems could be formulated in the context of his personality difficulty with superimposed periods of depression over the years. I discussed this with Kenny, and he appeared to agree with the formulation.
The plan we agreed is as follows:
1. At this point of time, I do not see the need for any medication.
2. I will refer Kenny for psychotherapy at Priory Woking.
3. Kenny needs reasonable adjustments, and this would be in the form of clear verbal communication and allowing him sufficient time to understand while sending written material.
4. I have not offered any follow up for Kenny but will be happy to see him if he gets stuck in the process of psychotherapy."
- Dr Rao's further letter to the GP dated 14 March 2024 started in these terms:
"I reviewed Kenny in my outpatient clinic in Priory Woking on 12th March 2024. The purpose of the appointment was to assess his capacity to consent in the context of the multiple court proceedings Kenny in involved in. Kenny talked about 16 court cases which he is pursuing at present in the context of reasonable adjustments in the context of mental health. He understands the nature of the proceedings and the possible outcomes and does have the capacity to assist his solicitors/barrister in these proceedings."
Dr Rao summarised Mr Johnston's current health, noting that he was benefitting from therapy and that he felt his anxiety symptoms had improved. There were no abnormalities in his current mental state examination and Dr Rao found that he had good insight. He reported that they had agreed on the following plan:
"1. I will fill in a formal certificate of capacity confirming that he has the capacity to instruct a legal representative.
2. I would also recommend that reasonable adjustments are made while communicating with Kenny. He does get incredibly anxious if presented with a document in writing, like an email or a letter, and would much prefer a verbal communication before a written communication is presented.
3. He is keen to not attend the court and happy to support his decision, he will communicate this to his solicitor.
4. I have not arranged to formally review him in my outpatient clinic but will see him as and when required while he is undergoing therapy."
- Dr Rao completed the same certificate of capacity form as used by Dr Attavar. He described the proceedings as "Various proceedings requiring reasonable adjustments in context of mental health". He left undeleted the statement that Mr Johnston "has capacity (within the meaning of the Mental Capacity Act 2005) to conduct the proceedings". The remaining parts of the form were deleted with the comment "N/A".
Capacity – discussion and conclusion
- On behalf of Mr Johnston, Mr Matovu submitted that Dr Attavar's assessment and certificate established that his client lacked capacity, was therefore a "protected party", and should have been provided with a litigation friend pursuant to CPR rule 21.2(1). In those circumstances, the deputy district judge's order should be set aside. Mr Matovu drew a comparison with Dunhill v Burgin, supra, where a consent order signed by counsel for a protected party was set aside several years later as she had not had a litigation friend and any settlement should have been approved by the court. He submitted that, in the circumstances, the deputy district judge should not have entertained the Respondent's strike-out applications at all, given that Mr Johnston was a protected party at the relevant time and was representing himself without a litigation friend.
- If we were persuaded to accept the opinion of Dr Attavar that Mr Johnston lacked capacity from 2010 to 2023, the effect would in fact be more far reaching than contended for by Mr Matovu. For under CPR rule 21.3(4), "any step taken before a… protected party has a litigation friend has no effect unless the court orders otherwise". If Mr Johnston lacked capacity for the period of 13 years asserted by Dr Attavar, he had no capacity to start the proceedings against the FOS when he filed the claim in December 2020, with the result that every step in the proceedings from the filing of the claim onwards would have no effect unless the court ordered otherwise. No application has been made for the court to make such an order.
- In the event, this problem does not arise because I am wholly unpersuaded that it has been established on behalf of Mr Johnston that he lacked capacity at any material time.
- There are a number of deficiencies and difficulties in the evidence about capacity presented to this Court. A preliminary point is that none of the reports complies fully with the requirements for expert evidence in CPR rule 35.10 and Practice Direction 35. In addition, and more importantly, there are deficiencies in the evidence of Dr Attavar on which Mr Johnston relies to rebut the presumption of capacity. As Ms Morris KC pointed out on behalf of the FOS, these deficiencies are similar to those identified in Cannon v Bar Standards Board. In some respects, they are even more substantial.
- First, there are deficiencies in the manner in which Dr Attavar was instructed to conduct the assessment. As Ms Morris pointed out, there is no letter of instruction either for the report produced in July 2023 or for the certificate signed in September 2023. Furthermore, it seems from the July report that Dr Attavar only had access to some of the relevant medical records. There is nothing in the September certificate to suggest that, before signing the certificate, he had an opportunity for a comprehensive review of the records recommended by Poole J in Public Guardian v RI and Others.
- Secondly, the certificate signed by Dr Attavar failed to identify at all the proceedings in respect of which he was certifying that Mr Johnston lacked capacity. Mr Johnston has engaged in a number of proceedings – according to Dr Rao's September report, he spoke of being involved in sixteen court cases. The question of capacity to conduct proceedings depends in part on the proceedings involved. Whether or not a litigant is able to understand, retain, and use or weigh the information relevant to the decision may vary depending on the decision and the information involved. Dr Attavar's certificate does not identify which of the various cases in which Mr Johnston was apparently involved is covered by the certificate.
- Thirdly, the certificate does not explain how Mr Johnston's mental disorders affected his capacity to understand, retain, and use or weigh the information so as to leave him unable to make decisions and conduct the proceedings. Some of the comments in the certificate amount to no more than a repetition of the diagnosis with no or no sufficient explanation of how the disorders affect his abilities. Indeed, it is unclear from the certificate whether Dr Attavar was in fact saying that Mr Johnston was unable to understand, retain, and use or weigh the information. In some respects, the text inserted in the boxes in Part 2 suggested that his abilities depended on whether he was supported and provided with reasonable adjustments.
- Fourthly, the certificate referred to the earlier report prepared a few weeks prior to the certificate in July 2023. The conclusion in that report, however, was that, whilst Mr Johnston did not have capacity to conduct legal proceedings by himself without a legal representative, he did have the capacity to instruct a lawyer to act for him in his legal affairs.
- Fifthly, the bald assertion in the certificate that Mr Johnston has been unable to conduct litigation since 2010 was unsupported by any analysis or explanation. An assertion that he had lacked capacity for thirteen years required some explanation, by reference to the evidence considered by Dr Attavar who had not met Mr Johnston before July 2023. The certificate contained no such explanation, and the July letter to which it referred contained only a brief summary of extracts from the medical records which had been supplied by Mr Johnston himself. There was, for example, no reference to anything between 2010 and 2016. In those circumstances, it is difficult to understand how Dr Attavar was able to say that Mr Johnston had lacked capacity since 2010.
- Furthermore, Dr Attavar's opinion was not supported by the subsequent opinion of Dr Rao. Less than three weeks after Dr Attavar saw Mr Johnston and signed a certificate that he lacked capacity to conduct unspecified proceedings and had done so since 2010, Dr Rao assessed him and concluded that he needed "reasonable adjustments … in the form of clear verbal communication and allowing him sufficient time to understand while sending written material." It is true that Dr Rao was not at that stage asked to assess his capacity, but there is nothing in his report to support Dr Attavar's conclusion. In March 2024, Dr Rao conducted a capacity assessment and reached the clear conclusion that Mr Johnston did not lack capacity to conduct any of the various proceedings in which he was engaged. It was Dr Rao's view that Mr Johnston needed a range of reasonable adjustments which he spelt out in his report, but not that he lacked capacity. In my view, Dr Rao's clear and well-presented opinion is to be preferred to the opinion expressed by Dr Attavar.
- The presumption of capacity is a fundamental principle in our law. As Burnett J observed in V v R, "the underlying policy of the Act is to avoid concluding that incapacity is established unless, after careful enquiry, it is necessary to do so". Furthermore, "in the context of litigation, a finding of incapacity curtails the right of unimpeded access to the law" – a further fundamental principle. The evidence adduced on this appeal comes nowhere near rebutting the presumption.
- Accordingly, I conclude that Mr Johnston has failed to prove that he lacked capacity at any stage in these proceedings. He was therefore not a "protected party" under CPR rule 21.1. I would therefore dismiss the appeal on the ground for which permission has been granted.
Permission to appeal
- I turn to the remaining grounds in respect of which Lewison LJ adjourned the question of permission to appeal to this hearing. Under CPR rule 52.21(3), an appeal against a judge's decision will only be allowed where the appeal court is satisfied that the decision was wrong or unjust because of a serious procedural or other irregularity. Under CPR rule 52.7(2), this Court will not give permission to bring a second appeal unless it considers that (a) the appeal would (i) have a real prospect of success and (ii) raise an important point of principle or practice or (b) there is some other compelling reason for the Court of Appeal to hear it.
- In respect of the first ground, Mr Matovu pointed out that DDJ Althaus ruled that the statutory immunity applied in the case of the Respondent's compulsory jurisdiction. He submitted, however, that the immunity is confined to anything done or omitted in the discharge, or purported discharge, of functions in relation to the compulsory jurisdiction. It does not apply to issues which do not relate to the compulsory jurisdiction, such as issues arising when accessing the FOS's service. Mr Matovu explained that Mr Johnston's complaint concerned the FOS's failure (1) to provide information to people with disabilities on how they might obtain a reasonable adjustment and (2) to provide a reasonable adjustment to him to be made so as to enable him to engage with their office orally over the telephone rather than communicating via email. Those failures related to the making of a service complaint or in anticipation of possibly making such a complaint. They did not relate to the compulsory jurisdiction.
- It is, however, clear from the transcript of the hearing before the deputy district judge that Mr Johnston's case on the immunity issue was substantially the same as now advanced by Mr Matovu on his behalf – that his complaint was not about the FOS's investigation of his complaint about Santander but rather about their alleged failure to provide reasonable adjustments so he could access their services. This was, therefore, part of the appeal to the circuit judge which was expressly abandoned by counsel on his behalf. As Lewison LJ pointed out in his reasons for adjourning the permission application to the full hearing, a decision of that kind is normally within the authority of counsel. A third party is entitled to rely on the decision unless the principal is incapacitated and the third party aware of the principal's incapacity. It was because this issue was, in Lewison LJ's words, "linked to the overarching allegation of incapacity" that he adjourned the application for permission on this ground. In the light of my conclusion that the presumption of capacity has not been rebutted, I find no reason to justify allowing Mr Johnston to pursue a second appeal on a ground that was abandoned at the first appeal hearing.
- In respect of the second ground, it was contended that Mr Johnston had contacted the court seeking a discussion about reasonable adjustments at the hearing before the deputy district judge, yet no ground rules hearing was arranged nor any other step taken, with the result that Mr Johnston was required to represent himself at the hearing before the deputy district judge with no assistance of the sort required under the rules or the Equal Treatment Bench Book. Although the question of adjustments had not been expressly raised at the hearing before the deputy district judge by Mr Johnston, nor before the circuit judge by counsel then acting on his behalf, the onus was on the tribunal to assess what adjustments were necessary: Galo v Bombardier Aerospace UK [2016] NICA 25 paragraphs 53 and 59. Mr Matovu submitted that the failure to provide reasonable adjustments for the hearing infected the whole process.
- It is now an established principle in our law that:
"there is a legal duty on every judge/panel in every case to ensure that disabled litigants, defendants and witnesses (and, where appropriate, advocates, jurors and others involved in the court process) are able to participate as fully in the process of justice as is reasonably possible. Making reasonable adjustments or accommodating the needs of disabled people is therefore not a form of favouritism or bias towards them but part of showing respect for people's differences and helping to provide a level playing field. The focus should be on actions that remove any unnecessary barriers towards participation" (Equal Treatment Bench Book, July 2024 edition page 80).
It is true that there was no reference to such adjustments being needed either in the skeleton argument prepared by Mr Johnston for the hearing before the deputy district judge or during his oral submissions to the court. Mr Johnston had, however, requested reasonable adjustments for the hearing in emails to the court office. There is nothing in the transcript to suggest that the deputy district judge was aware of the emails, but there was clearly an obligation on the court to consider the request and, where appropriate, make reasonable adjustments.
- The question for this Court now is whether this omission gives rise to a real prospect of a successful appeal. Did the omission amount to a serious procedural irregularity so as to render the decision unjust? It may be arguable that, given Mr Johnston's vulnerabilities, and his need for reasonable adjustments at a point where he was acting in person, the deputy district judge ought to have allowed him a further opportunity to file particulars of claim. But by the date of the hearing before HH Judge Saggerson, Mr Johnston had legal representation for several months, yet there was still no draft of the particulars. In those circumstances, the judge was entitled to refuse the application to amend the grounds of appeal, and his decision was not vitiated by the fact that at an earlier stage in the proceedings the need for reasonable adjustments had not been recognised.
- It continues to be the case that Mr Johnston seeks to pursue a claim for which there is no properly pleaded case. Although Mr Johnston was acting in person at the time of the hearing before the deputy district judge, he has had the benefit of legal representation at various points since that hearing, including at the hearing of the first appeal. Over three years on from the dates on which these proceedings were started, there is no pleaded claim. In particular, there is no pleaded factual basis underpinning the purported legal argument about immunity. There are no particulars of the FOS's alleged failure to provide information to people with disabilities on how they might obtain a reasonable adjustment, nor any particulars of its alleged failure to make reasonable adjustments to assist Mr Johnston in accessing its services. There are no particulars to indicate how these alleged failures give rise to a cause of action. There are no particulars of loss.
- In addition, there is the difficulty identified by Lewison LJ that the absence of a ground rules hearing, or any other reasonable adjustments, was not raised by counsel acting for Mr Johnston at the hearing before HH Judge Saggerson. As Lewison LJ pointed out, the usual rule is that an appellant is not permitted to raise on a second appeal a point that was not raise on the first. Again, the reason given by Lewison LJ for adjourning the decision on permission to appeal on this ground was the doubt about the appellant's capacity at the time. Given my conclusion on the capacity issue, that doubt has fallen away and in my view there is no reason for departing from the usual rule.
- In those circumstances, there is no real prospect that the proposed appeal would succeed on either ground. In addition, the basis for granting permission to bring a second appeal is not established. Whilst the treatment of vulnerable parties is an issue of fundamental importance, the proposed appeal does not raise an important point of principle or practice about that treatment, and the appellant has not demonstrated any other compelling reason for this Court to hear the appeal.
- For those reasons, I would refuse permission to appeal on the other grounds.
LORD JUSTICE COULSON
- I agree that, for the reasons given by my Lord, Lord Justice Baker, this appeal should be dismissed. The appellant has not demonstrated that the presumption that he had the necessary capacity should be disapplied. I add this short judgment of my own to address a potentially important procedural issue which arose during the hearing.
- One of the oddities of this case is that, unlike all the authorities to which we were referred, this was a situation where a claimant – not a defendant – sought to argue that he did not have capacity during the relevant period. Since, on his case, that period extended back to 2010, the effect of his argument appeared to be that not only the intervening court orders, but the entire proceedings (which he started), were a nullity. Mr Matovu appeared to accept that point during the course of argument.
- Entirely properly, Ms Morris KC, on behalf of the respondent, drew our attention to CPR 21.3. That provides:
"21.3.
(1) This rule does not apply where the court has made an order under rule 21.2(3).
(2) A person may not, without the court's permission —
(a)make an application against a child or protected party before proceedings have started; or
(b)take any step in proceedings except—
(i)issuing and serving a claim form; or
(ii)applying for the appointment of a litigation friend under rule 21.6, until the child or protected party has a litigation friend."
Ms Morris said that, on one reading of r.21.3(2)(b)(i), a person who did not have capacity could commence proceedings by issuing a claim form, even if the lack of capacity invalidated all the subsequent court orders.
- I do not agree with that interpretation of the rule. In my judgment, r.21.3(2) is concerned with the position where a child or protected party is a defendant. It is designed to give the child or protected party proper protection once they have been served with a claim form. The first two sub-rules of r.21.3 are not concerned with the position where a party without capacity wishes to bring a claim in their own name. I note that, at paragraph 21.3.1, the learned editors of this part of the White Book take the same view as to the scope of the rule.
- That must also be right as a matter of common sense. A child of 8 does not have capacity, so could not validly commence proceedings on his or her own. Furthermore, if a lack of capacity invalidates orders made by a court at a time when it was not appreciated that the party in question did not have capacity, then it would be absurd if the same rule did not apply to the commencement of the proceedings themselves, if those proceedings had been commenced by somebody who lacked capacity.
LADY JUSTICE ASPLIN
- I agree that the appeal should be dismissed for the reasons given by Lord Justice Baker. I also agree with Lord Justice Coulson's interpretation of CPR 21.3 and his reasoning in paragraph 82 above.
