Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the time to accept the offer.
Held: There is no definition of mental capacity of universal application, but rather the issue of capacity must be looked at in the context of each decision to be made. A person may be capable in law of one kind of decision, but not of another. There was no precedent case dealing with the capacity to conduct and settle proceedings. A person may have that capacity but not necessarily the capacity to administer an award once received. A medical expert asked to advise, should answer against the particular background issue. The issue might be properly addressed in the court forms.
Capacity should be judged in a common sense way, bearing in mind the need to allow people the right to manage their own affairs. The test under the Civil Procedure Rules provided the need for a party to be able to understand the issues, with such professional assistance as was appropriate. A person is not to be regarded as incapable of managing his affairs because, in order to do so, he will need to take advice, or because he may not take it, when given, or because he is vulnerable to exploitation, or at risk of taking rash or irresponsible decisions.
Kennedy LJ said: ‘What, however, does seem to me to be of some importance is the issue-specific nature of the test; that is to say the requirement to consider the question of capacity in relation to the particular transaction (its nature and complexity) in respect of which the decisions as to capacity fall to be made. It is not difficult to envisage claimants in personal injury actions with capacity to deal with all matters and take all ‘lay client’ decisions related to their actions up to and including a decision whether or not to settle, but lacking capacity to decide (even with advice) how to administer a large award. In such a case I see no justification for the assertion that the claimant is to be regarded as a patient from the commencement of proceedings. Of course, as Boreham J said in White’s case [White v Fell (unreported) 12th November 1987), capacity must be approached in a common sense way, not by reference to each step in the process of litigation, but bearing in mind the basic right of any person to manage his property and affairs for himself, a right with which no lawyer and no court should rush to interfere.’
Chadwick LJ said: ‘English law requires that a person must have the necessary mental capacity if he is to do a legally effective act or make a legally effective decision for himself . .
The authorities are unanimous in support of two broad propositions. First, that the mental capacity required by the law is capacity in relation to the transaction which is to be effected. Second, that what is required is the capacity to understand the nature of that transaction when it is explained . .
The authorities to which I have referred provide ample support for the proposition that, at common law at least, the test of mental capacity is issue-specific: that, as Kennedy LJ has pointed out, the test has to be applied in relation to the particular transaction (its nature and complexity) in respect of which the question whether a party has capacity falls to be decided. It is difficult to see why, in the absence of some statutory or regulatory provision which compels a contrary conclusion, the same approach should not be adopted in relation to the pursuit or defence of litigation . .
For the purposes of Order 80 – and, now, CPR Pt 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).’
Lord Justice Potter, Lord Justice Kennedy, Lord Justice Chadwick
Times 28-Dec-2002,  EWCA Civ 1889,  1 WLR 1511, (2003) 73 BMLR 1,  Lloyds Rep Med 244,  PIQR P20,  WTLR 259,  CP Rep 29,  3 All ER 162, (2004) 7 CCL Rep 5
Civil Procedure Rules 21, Rules of the Supreme Court 80, Mental Health Act 1983
England and Wales
Cited – In re F (Mental Patient: Sterilisation) HL 4-May-1989
Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .
Cited – Re Cumming CA 1852
Knight Bruce LJ said: ‘It is the right of an English person to require that the free use of his property, and personal freedom, shall not be taken from him on the ground of alleged lunacy, without being allowed the opportunity of establishing his . .
Cited – In re MB (Medical Treatment) CA 26-Mar-1997
The patient was due to deliver a child. A delivery by cesarean section was necessary, but the mother had a great fear of needles, and despite consenting to the operation, refused the necessary consent to anesthesia in any workable form.
Held: . .
Cited – Re C (Adult: Refusal of Treatment) FD 1994
C had been admitted to a secure hospital as a patient under Part III of the Mental Health Act 1983 because of his paranoid schizophrenia. He now sought an injunction to prevent the amputation of his gangrenous foot without his written consent. The . .
Cited – White v Fell 12-Nov-1987
The court was asked to decide whether the claimant had been incapable of managing her property and affairs in the context of a Limitation Act defence.
Held: There are three features to which it is appropriate to have regard when assessing a . .
Cited – Banks v Goodfellow QBD 6-Jul-1870
Test for Capacity to Execute Will
The testator suffered from delusions, but not so badly or in such a way as was found to affect his capacity or to influence his testamentary disposition. The judge had given the following direction: ‘The question is whether . . the testator was . .
Cited – Winterwerp v The Netherlands ECHR 24-Oct-1979
A Dutch national detained in hospital complained that his detention had divested him of his capacity to administer his property, and thus there had been determination of his civil rights and obligations without the guarantee of a judicial procedure. . .
Cited – W v L CA 1974
For civil patients, it matters a great deal whether the classification of their condition is ‘severe subnormality’ or just ‘subnormality’ or whether it is ‘mental illness’ or ‘psychopathic disorder’. Lawton LJ discussed the construction of the . .
Cited – Kirby v Leather CA 1965
The plaintiff crashed into a van whilst riding his moped and suffered serious brain damage. An inquiry as to a party’s competence to conduct a case had to focus on his capacity to conduct the proceedings. In this case the plaintiff ‘was not capable . .
Cited – Ball v Mallin HL 1829
A person must have the necessary mental capacity if he is to execute a voluntary deed. The House upheld a direction to the jury that what was required was that a person ‘should be capable of understanding what he did by executing the deed in . .
Cited – Charles Harwood v Maria Baker PC 1840
The Board emphasised the importance that the Court of Probate should be satisfied that a testatrix had the necessary capacity when she executed the will if the evidence showed that she had lost capacity shortly afterwards. The infirmity of the . .
Cited – Molton v Camroux CExC 1848
A person of unsound mind bought an annuity from a life assurance society. The society granted the annuities in the ordinary course of its business. The contracts were challenged.
Held: The court referred to the argument that a plea of insanity . .
Cited – Durham v Durham, Hunter v Edney (Orse Hunter), Cannon v Smalley (Orse Cannon) 1885
The burden of establishing that a party to a marriage had lacked capacity through insanity, lay on the party making the assertion. The court is to decide whether the respondent was capable of understanding the nature of the contract, and the duties . .
Cited – Imperial Loan Co v Stone CA 1892
Contract without Capacity – Voidable not Void
A person of unsound mind was sued on a promissory note. He had signed it as surety. The jury found that he was insane when he signed the note but there was no finding as to the creditor’s knowledge of such insanity. The judge entered a verdict . .
Cited – Manches v Trimborn 1946
The answer to the question whether the mental capacity necessary in order to render the consent of the party concerned a real consent was present in any particular case would depend on the nature of the transaction. . .
Cited – In re Estate of Park (deceased), Park v Park CA 2-Jan-1953
The deceased had remarried. His beneficiaries asserted that he had lacked capacity and that the marriage was ineffective.
Held: The test of capacity to marry is whether he or she was capable of understanding the nature of the contract, was . .
Cited – Gibbons v Wright 1954
(High Court of Australia) Sir Owen Dixon discussed the principle that mental capacity at law varied with the transaction at issue: ‘the mental capacity required by the law in respect of any instrument is relative to the particular transaction which . .
Cited – Mason v Mason 1972
The court considered the mental capacity required of somebody to give their consent to a decree of divorce. . .
Cited – In Re Beaney deceased ChD 1978
A gift made inter vivos by a mother of three children to one of them alone of the mother’s only asset of value, at a time when she was in an advanced state of senile dementia, was void because the claims of the donee’s siblings and the extent of the . .
Cited – Re K (Enduring Powers of Attorney), In re F ChD 1988
The court allowed an appeal against the decision of the Master of the Court of Protection refusing registration to an enduring power of attorney on the ground that the donor, although capable of understanding the nature of the power, was herself . .
Cited – Beall v Smith CA 6-Dec-1873
Lord Justice James discussed the practice in the Court of Chancery on claims brought by people without mental capacity: ‘The law of the Court of Chancery undoubtedly is that in certain cases where there is a person of unsound mind, not so found by . .
Cited – Hart v O’Connor PC 22-Apr-1985
Effect of insanity on making of contract
(New Zealand) The parties disputed the effect in law of an agreement for the sale of land. The transferor had proved not to be of sound mind.
Held: The validity of a contract entered into by a lunatic who is ostensibly sane is to be judged by . .
Cited – In Re CAF 1962
When considering a person’s capacity to manage and administer his property and affairs, it is necessary to have regard to the complexity and importance of that person’s property and affairs. . .
Cited – In re S (F G) (Mental Health Patient) 1973
The court considered the relationship between the jurisdiction of the Court of Protection to order and give directions for, or to authorise, legal proceedings in the name or on behalf of, a patient within the meaning of section 101 of the 1959 Act . .
Cited – Phillips, Harland (Administrators of the Estate of Michailidis), Papadimitriou; Symes (A Bankrupt), Robin Symes Limited (In Administrative Receivership), Domercq etc ChD 30-Jul-2004
Under the Ciivil Procedure Rules, experts have acquired greater responsibilities to the court. Those responsibilities transcend their perceived obligations to the parties whom they give evidence. . .
Cited – Dixon v Were QBD 26-Oct-2004
The claimant and others were being driven by the defendant. All had drunk, and none wore seat belts. The claimant sought damages for his injuries. General damages were agreed, and the issue was as to loss of future earnings.
Held: The claimant . .
Cited – Hoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .
Cited – Sheffield City Council v E; Re E (An Alleged Patient) FD 2-Dec-2004
The council sought an order to prevent E, a patient from contracting a marriage which it considered unwise. As a preliminary issue the parties sought guidance as to the questions to be put to the expert as to capacity.
Held: The woman suffered . .
See Also – Masterman-Lister v Brutton and Co and Another (2) CA 16-Jan-2003
The claimant had been funded for a personal injury claim under legal aid. He appealed against a decision that he was not a ‘patient’ and that he had been fully capable of managing and administering his affairs for many years. He lost. The . .
Cited – A v The Archbishop of Birmingham QBD 30-Jun-2005
Assessment of damages following child abuse by Catholic priest.
Held: General damages of andpound;50,000 were in line with Coxon and were approved. A had not been shown to be, and is not, incapable of managing his affairs. The court differed . .
Cited – E v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
Cited – Bailey v Warre CA 7-Feb-2006
The claimant had been severely injured in a road traffic accident. His claim was compromised and embodied in a court order, but later a question was raised as to whether he had had mental capacity at the time to make the compromise he had.
Applied – Lindsay v Wood QBD 16-Nov-2006
The claimant suffered severe brain injury in a crash. The parties sought guidance form the court as to his legal capacity.
Held: The fact that a party may be particularly susceptible to exploitation was a relevant element when considering his . .
Cited – S v Floyd, Equality and Human Rights Commission CA 18-Mar-2008
The court considered the relationship between the two Acts. The assured tenant had fallen into arrears, and was subject to an order for possession. He claimed that his disability required the court not to make an order for possession against her, . .
Cited – In re PS (an Adult), Re; City of Sunderland v PS by her litigation friend the Offcial Solcicitor and CA; Re PS (Incapacitated or Vulnerable Adult) FD 9-Mar-2007
The patient an elderly lady with limited mental capacity was to be returned from hospital, but her daughter said she was to come home. The local authority sought to prevent this, wanting to return her to a residential unit where she had lived for . .
Cited – McFaddens (A Firm) v Platford TCC 30-Jan-2009
The claimant firm of solicitors had been found negligent, and now sought a contribution to the damages awarded from the barrister defendant. They had not managed properly issues as to their clients competence to handle the proceedings.
Held: . .
Cited – Haithwaite v Thomson Snell and Passmore (A Firm) QBD 30-Mar-2009
The claimant sought damages from his former solicitors for admitted professional negligence. The court considered the loss suffered in the handling of his claim against a health authority. The solicitors received advice after issuing that the . .
Cited – Dunhill v Burgin CA 3-Apr-2012
The claimant had been severely injured in a road traffic accident, and had settled her claim for damages. It was not appreciated at the time that she lacked capacity to make such a decision. The court was now asked what it should consider on . .
Cited – Bailey v Warren CA 7-Feb-2006
The appellant had been severely injured in a road traffic accident. He settled his claim for damages before action, but his solicitors failed to make proper arrangements to allow for his lack of mental capacity. A claim for damages was then brought . .
Cited – CS v ACS and Another FD 16-Apr-2015
Rule Against Appeal was Ultra Vires
W had applied to have set aside the consent order made on her ancillary relief application accusing the husband of material non-disclosure. She complained that her application to have the order varied had been refused on the ground that her only . .
Cited – Dunhill v Burgin SC 12-Mar-2014
Lack of Capacity – Effect on Proceedings
The Court was asked ‘First, what is the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf (in which case the Civil Procedure Rules require that she has a litigation friend to conduct the . .
Lists of cited by and citing cases may be incomplete.
Health, Litigation Practice, Civil Procedure Rules
Updated: 18 December 2021; Ref: scu.178553