This judgment was handed down remotely at 9:30am on 03/04/25 by circulation to the parties' representatives by e-mail and by release to the National Archives.
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Mr Justice Bright:
- This matter is subject to an anonymity order made by HHJ Sephton dated 3 March 2025.
- This written judgment follows a hearing that took place on 19 March 2025. It is produced in circumstances where I gave an oral extempore judgment at the end of the hearing, but the court recording equipment failed. In order to assist the parties, I have therefore prepared this written judgment, which is based on the note that I used when I gave my oral extempore judgment. I am confident that it reflects the reasons that I gave orally, with no material differences.
- This judgment concerns an appeal from the Order of DJ Rome, sitting as a Judge of the High Court, dated 13 September 2024.
- By paragraphs 1 to 3 of that Order, it was ordered that the Official Solicitor be appointed as the Claimant's Litigation Friend, that all steps taken after September 2023 should have effect, and that the Official Solicitor would make no charge, the litigation being funded by way of a conditional fee arrangement. These paragraphs of the Order of 13 September 2024 are not challenged by any party.
- However, paragraphs 4 to 16 of the Order of 13 September 2024 made directions for the hearing of an issue as to the Claimant's capacity to conduct litigation and manage funds. They provided for the exchange of factual and expert evidence in relation to capacity. They culminated with the parties being required to inform the Court by 10 July 2025 whether capacity remained in dispute and, if so, to request a hearing on the issue of capacity with an estimate of 3 days. Paragraphs 4 to 16 are the subject of this appeal.
- The underlying claim is for clinical negligence and arises out of the Defendant's alleged failure to diagnose appendicitis in 2009, as well as associated subsequent alleged failings, said to have continued to 2015. It is said that this unfortunate history caused severe injuries and has had a profound effect on every aspect of the Claimant's life.
- Proceedings were commenced in the High Court, in the Manchester District Registry. Particulars of Claim were served in June 2020. The proceedings then progressed normally for some considerable time. The Judge who dealt with the general management of the case was DJ Rome.
- During 2023, the Claimants' solicitors became concerned about the Claimant's capacity. They made an application to the Official Solicitor to act as the Claimant's litigation friend. The Court was notified of this.
- On 11 September 2023, DJ Rome made an Order which noted the application made by the Claimants' solicitors to the Official Solicitor and gave directions for the service by both parties of evidence on the Claimant's capacity, before the next CCMC hearing. Shortly after this Order, the Claimant served evidence from a neuropsychologist, Dr Ford, on the standard COP3 format, dated 13 September 2023. The Defendant served responsive evidence from another neuropsychologist, Dr Mullin, dated March 2024.
- On 2 May 2024, DJ Rome made an Order noting that the Claimant continued to lack capacity and providing for the service of evidence from the Defendant's psychiatrist, Dr Carnwath. This evidence was dated 7 June 2024.
- On 11 September 2024, the Claimant issued its application to the Court for the Official Solicitor to be appointed as the Claimant's litigation friend, pursuant to CPR 21.6 and for updated directions. It was this application that was heard on 13 September 2024 and gave rise to the Order that is the subject of this appeal.
- The legal framework for questions of capacity is provided by the Mental Capacity Act 2005 ("MCA 2005).
i) A person must be assumed to have capacity unless it is established that they lack capacity: section 1(2) MCA 2005.
ii) The standard of proof is the balance of probabilities: section 2(4) MCA 2005.
iii) 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: section 1(3) MCA 2005.
iv) A person is not to be treated as unable to make a decision merely because he makes an unwise decision: section 1(4) MCA 2005.
- The fundamental test to be applied is set out in s. 2. It has two stages: A Local Authority v JB [2021] UKSC 52.
i) The first stage emerges from the Supreme Court's decision at [67] to [69]. It must be considered whether the relevant person is unable to make decision for himself in relation to the relevant matter [67]. This requires identifying what the matter is that is the subject of the decision – in this case, decisions that arise in litigation. It also requires the court to identify the information relevant to that decision.
ii) At the second stage, it must be considered whether the relevant person's inability to make a decision is because of an impairment of, or a disturbance in the functioning of, the mind or brain. The decision of the Supreme Court established at [78] that there must be a causative nexus between the relevant person's inability to make decisions in relation to the matter and an impairment/disturbance.
- The Act sets out the test for the inability to make a decision in s. 3. This provides that a person is unable to make a decision for himself if he is unable to
i) understand the information relevant to the decision;
ii) retain that information;
iii) use or weigh that information as part of the process of making the decision; or
iv) communicate his decision whether by talking, using sign language or any other means.
- On the facts of this case, it is the first, second and third limbs that are particularly relevant.
- The procedural framework for questions of capacity in the context of court proceedings is provided by CPR Part 21, together with its Practice Direction. CPR Part 21 gives effect to the MCA 2005 in respect of people who lack capacity to litigate.
i) The MCA 2005 definition of capacity is applied by CPR 21.1(2)(c). A person who lacks capacity is a protected party: CPR 21.1(2)(d).
ii) CPR 21.2 imposes a requirement that there be a litigation friend for a protected party
- A person may act as the litigation friend for a claimant who is a protected party, without a court order, as long as they do so from the time the claim is commenced. The litigation friend must file a statement of suitability in accordance with CPR 21.4(3) and 21.5(3)(a), but no decision of the court is required.
- However, where, as here, the proceedings were commenced without a litigation friend, the appointment of a litigation friend requires a court order, in accordance with CPR 21.6. This requires the court to be satisfied of all the matters set out in rule 21.4(3), as follows:
i) that the prospective litigation friend can fairly and competently conduct proceedings on behalf of the child or protected party;
ii) that the prospective litigation friend has no interest adverse to that of the child or protected party; and
iii) where the child or protected party is a claimant, that the litigation friend undertakes to pay any costs that the claimant is ordered to pay, subject to any right to be repaid from the assets of the child or protected party.
- Where the proposed litigation friend is the Official Solicitor, under CPR 21.6, the court's order must make provision for payment of any charges, expenses or disbursements.
- In this case, the litigation friend is the Official Solicitor, and costs have been addressed by one of the unchallenged provisions of the Order of 13 September 2024. Accordingly, there was and is no difficulty as to the suitability of the litigation friend.
- A further source of guidance that is particularly relevant on the facts of this case is the decision of the Court of Appeal in Folks v Faizey [2006] EWCA Civ 381. This too was a case where the appointment of a litigation friend was sought in the course of proceedings, and a dispute developed as to whether this was the appropriate course. The judge below did not decide capacity on the materials before him and did not make the appointment. Instead he ordered the trial of a preliminary issue as to capacity, for which he gave directions, including the service of evidence and a hearing date, which had the potential to disrupt and delay the progress of the case as a whole.
- In submissions, I have been taken to extensive passages from all three judgments in the Court of Appeal. All three members of the Court of Appeal were critical of capacity, and the appointment of a litigation friend, being litigated as an issue between the parties – at least in circumstances where no previous step or decision was under any real challenge on the basis of capacity. They deprecated the development of satellite litigation in relation to capacity, because of the additional costs and delay that inevitably result.
- In the interest of not lengthening unnecessarily this judgment, it suffices to quote from the judgment of Pill LJ at [19] and [20], with whom the others agreed (as well as adding their own comments):
"19. In this case, those advising the respondent, without any plausible reason in terms of protecting the respondent's own position, have sought to interfere in a procedure with which they were only minimally concerned. Indeed, the appointment of a litigation friend would give them protection to them (sic) as well as to the appellant and his advisors. I should not wish to describe the opposition as an abuse of the process of the court but in my judgment it is an intermeddling, for no sound reason, which the judge, on the evidence available, ought not to have tolerated.
20. The CPR have "the overriding objective of enabling the court to deal with cases justly" (CPR 1.1(1)). That includes, under 1.1(2), saving expense, ensuring that a case is dealt with expeditiously and fairly, and having regard to the court's resources. The present attempt by the respondent's advisors to achieve what is likely to have been a two day hearing, with specialist medical evidence, to resolve an issue of minimal importance to the outcome of the litigation, and where an application had been made with good reason and supported by responsible evidence, was fundamentally at odds with that overriding objective."
- This is not a case where the Defendant has any real interest in whether or not a litigation friend is appointed. That is especially so where the proposed litigation friend is someone obviously suitable, such as the Official Solicitor. The appointment will cause no real prejudice to the Defendant. If anything, it will provide a degree of protection. Otherwise, for example, any settlement reached might be subject to retrospective challenge on the basis that the Claimant did not have the capacity to agree to it. That is because any decision made now as to capacity would not be capable of establishing the Claimant's capacity in the future – in particular, at whatever date in the future the parties may come to settle (if they do).
- Mr Rahman, on behalf of the Defendant, tried to persuade me that the appointment of a litigation friend would or at least might prejudice the Defendant, because it would mean that any settlement would require the approval of the court and because (he said) a finding of lack of capacity might impact on quantum. Addressing these points:
i) Approval of a settlement is not a significant burden for the parties; especially not, in most cases, for the Defendant. As already indicated, any disadvantage that may flow from that minimal burden is greatly outweighed from the certainty that arises from court approval and the protection that comes with it.
ii) I accept that a finding of lack of capacity in respect of managing affairs might affect quantum. However, that should and can best be decided on the evidence at trial. There is no need for it to be a preliminary issue.
- Mr Rahman also suggested that a decision that the Claimant does not have capacity would affect the evidence as to psychiatric injury and its consequences. I am unable to see how it could make any real difference to this aspect of the trial.
- It follows that this is not a case where it was appropriate for the Judge to order a preliminary issue or to make the directions made in paragraphs 4 to 16 of the Order of 13 September 2024.
- I should say that I have some sympathy for the Judge. The hearing on 13 September 2024 was brief. The Judge was taken to the decision of the Court of Appeal in Folks v Faizey, but perhaps not in the required detail. This is reflected by the fact that her judgment amounted only to five short paragraphs.
- Furthermore, by the date of that hearing, a certain amount of momentum had built up. Capacity and the appointment of a litigation friend were matters already in issue between the parties, with evidence already submitted on both sides. The reality is that, while the Judge's earlier Orders of 11 September 2023 and 2 May 2024 are not challenged before me, the Order of 13 September 2024 was in effect the culmination of directions made by those earlier Orders. In an ideal world, Folks v Faizey would have been brought to the Court's attention at either or both of those earlier hearings.
- Furthermore, there is a tension in the Order of 13 September 2024. At paragraph 1, the Judge appointed the Official Solicitor as a litigation friend. As explained in paragraph 2 of the judgment this was on the basis that:
"2. The Court has heard submissions from legal representative on behalf of the Claimant and considered the evidence before the court. In view of both, the court determines that the claimant at this time lacks capacity The Court is satisfied here that it should appoint a litigation friend, in this case, the Official Solicitor, on the basis of the rules that I have been referred to, and indeed the case of Folks v Faizey."
- That being so, I am unable to understand on what basis the Judge then directed that there should be a preliminary issue as to capacity. The first two sentences of paragraph 3 of the judgment read as follows:
"3. The defendant wishes to challenge the contention that the claimant lacks capacity. This issue should be determined at a discrete hearing following updating evidence from the Claimant's expert and a joint meeting between the Claimant and the Defendant's expert on capacity."
- However, that is the very question that the Judge had decided, in paragraph 2.
- In all the circumstances, it seems to me that the Judge should not have allowed the Defendant to "intermeddle" (adopting the word used by Pill LJ). On the basis of the Claimant's evidence, the court was clearly entitled to decide that the Claimant lacked capacity and to appoint the Official Solicitor; which is what the Judge did, in paragraph 2 of the judgment and at paragraph 1 of the Order.
- I have noted above that the Claimant's evidence in support of the application was the report of Dr Ford, which was on the standard COP3 form. Dr Ford gave her view clearly and unambiguously, which was that the Claimant lacks capacity. The report was brief, but that is not a vice in itself. On the contrary, it is what is expected, where the standard COP3 form is used – as is entirely proper. It was undoubtedly sufficient to support a decision by the court to appoint a litigation friend.
- Even taking into account the evidence of the Defendant, it seems to me clear that the Claimant has what can be characterised as a disturbance in the functioning of the mind. There is disagreement between the experts as to the severity of this and as to its treatability and prognosis, but it is significant that Dr Carnwath accepts that the Claimant suffers from mental illness.
- The experts do not agree on the Claimant's ability to make decisions. In particular, Dr Carnwath's view was that his mental disorder is not severe enough to cloud his judgment or stop him weighing up information. Dr Mullin's assessment was less categorical, but Dr Mullin's notes of his interview with the Claimant did seem to me to suggest strongly that the Claimant's judgment is indeed clouded and that he has difficulty weighing up information. Two examples from Dr Mullin's report will suffice.
i) The first is from paragraph 5.6.2:
"5.6.2. When asked about his current situation, GA stated:
Why is this happening to me?
I think that I was kept in a prisoner of war camp and tortured.
I should have been looked after."
ii) The second is from paragraph 5.6.25:
"5.6.25. When asked about his understanding of the legal case, and his finances, GA
stated:
I told the other one that I can't cope with any bits of paper coming in.
We tried to get my Mum acting for me, but it caused her to almost have a break down.
Now, my mum can just about get the washing and that done.
She was the litigation friend but she can't do it so they are looking to get someone set up as a litigation friend.
They are looking to get some interim funds.
I want closure. I am hoping that closure will bring piece [sic].
I can't face the paperwork."
- The Defendant's experts and Mr Rahman make the point that there is reason to believe that the Defendant's mental condition may improve with treatment. If so, that will be highly relevant to quantum. However, the potential for improvement in the future is not relevant to current mental capacity. At present, in the Claimant's own words, he can't cope with any bits of paper coming in.
- I have no doubt that DJ Rome was right in the conclusion recorded in paragraph 2 of her judgment, and paragraph 1 of her Order. However, she went wrong in principle at paragraph 3 of her judgment and in paragraphs 4 to 16 of her Order.
- I therefore allow the appeal. Both parties, but perhaps especially the Claimant, are entitled to justice without delay. It is not possible to claw back the delay that has accrued since September 2024, but it is possible at least to arrest any further delay.
