Molly Hunter and Melissa Lesson examine the role of litigation friends in cases where a client has capacity issues, including fluctuating capacity
The presumption of mental capacity is an overarching principal of the Mental Capacity Act 2005 (MCA). However, where capacity is an issue and cannot be presumed, whether someone has the requisite level of capacity should be determined in respect of each decision at the “material time” – the “material time” being at the time the decision is made.
Nevertheless, whether someone has capacity to litigate is not a question that applies to a particular decision at a single point in time. Capacity to litigate concerns whether a party has the requisite level of capacity to conduct the proceedings in question. Proceedings take place over a period of time, and so we are not dealing with subject matter capacity; a person’s capacity to litigate cannot be assessed one step at a time as the litigation progresses.
Crucially, the solicitor, instructed by a client with potential capacity issues, must address capacity issues head-on. This is a daunting prospect if the instructed solicitor’s practice area has very little to do with capacity issues and the MCA. While often a capacity expert is instructed to carry out a capacity assessment, the decision to instruct the expert in the first place and then decide how to proceed on the basis of that assessment, ultimately rests with the solicitor. The ramifications of not dealing with capacity issues are serious – both for the client if steps taken during the course of the litigation are subsequently challenged on the basis of a lack of capacity and, of course, professionally for the solicitor.
Formulating the threshold test
The relevant legal test for assessing capacity to litigate is set out in common law, although the MCA should not be overlooked, as it provides the framework for the ‘functional’ test to be carried out. The Supreme Court in Dunhill v Burgin (Nos 1 and 2)  UKSC 18, confirmed the correct approach was that set out in Masterman-Lister v Brutton & Co  EWCA Civ 1889,  1 WLR 1511. In order to have capacity to litigate, a person must be capable of:
- comprehending information relevant to the litigation
- retaining that information and evaluating it, and
- communicating a decision if necessary, with the assistance of such lawyers, experts, or other persons as appropriate.
Capacity to litigate also needs to be considered in relation to the anticipated proceedings. That is, the complexity of the proceedings needs to be considered in relation to determining the relevant threshold test. While it seems logical that smaller, straightforward claims require a lower capacity threshold compared to complex, high value claims, this in itself raises a number of issues. How does one practically ascertain the relevant capacity threshold on what is undoubtedly a sliding scale?
In relation to this, it is worth bearing in mind that what qualifies as having the requisite level of ‘mental capacity’ is a legal definition and the relevant test is a legal test. This may seem like stating the obvious, but the difficulty lies in the fact that making a decision in respect of the level of someone’s cognitive ability undoubtedly crosses over to the medical field. This is why many experts in this area have a medical background. However, when instructing an expert, it is the responsibility of the instructing solicitor to set out what the relevant legal test is, and to provide instructions in respect of formulating the relevant threshold test. This is not straightforward.
For the purpose of the test, a person does not need to understand the claim as their lawyers have formulated it; rather, a person needs to understand the matters in relation to which they need to provide instructions (paragraph 18 of Dunhill v Burgin (Nos 1 and 2)). Therefore, in providing instructions to the expert, the instructing solicitor needs to take this into account, to ensure that the information provided to the expert is tailored towards what the client is expected to understand, rather than simply setting out the legal formulation of the claim. This will ensure that the expert does not apply too high a threshold when carrying out the test.
If it is found that a person does have capacity to litigate, addressing the issue of capacity does not end here, particularly if the person in question has diminishing levels of capacity. Moreover, it is possible that as the litigation progresses, the litigation capacity threshold itself may change. As litigators know only too well, it is impossible to predict with any certainty how the other side are likely to respond, and it is not unusual for litigation to turn out to be far more complicated than initially anticipated.
Where capacity is potentially an issue, solicitors instructed by a client with potential capacity issues should have a continued and heightened awareness to ensure that at every stage, capacity issues are considered to allow for the smooth conduct of the litigation. On a practical level, this should involve considering how often a solicitor should revisit the issue of capacity. This will need to be determined on a case-by-case basis, and appropriate measures will be entirely dependent on the circumstances. However, at the very least, regular ‘check-ins’, even if for internal purposes only, should be diarised and a file note setting out what has been considered should be recorded.
Appointment of a litigation friend
Where a person lacks capacity to litigate, they are known as a ‘protected party’. A litigation friend must be appointed to conduct proceedings on behalf of the protected party. The appointment of a litigation friend is a procedure of the court – it is not a fundamental principle of law – so a litigation friend cannot be appointed in the absence of court procedure.
In summary, there are three ways that a litigation friend can be appointed:
- by an order of the court
- by filing a ‘certificate of suitability’, or
- where a deputyship order confers the authority on the deputy for them to conduct proceedings on behalf of the protected party.
Where a deputyship order explicitly confers the authority on the deputy to conduct proceedings, they are able to act as a litigation friend, without the need to file a certificate of suitability. Instead, the deputy must file an official copy of the court order that confers their power to act.
Where the deputyship order does not explicitly confer authority for the deputy to conduct proceedings, the deputy is not automatically able to act as a litigation friend and must also file a certificate of suitability. Alternatively, a deputy is entitled to make a discrete application to the Court of Protection (CoP) or authority to act as a litigation friend – this application can be made irrespective of the court in which the litigation is taking place. If the deputy is a professional, in order to be paid for their work as a deputy in the litigation proceedings, authority from the CoP to act as a litigation friend will be necessary in any event.
The process for appointing a litigation friend varies from court to court and for each court, close attention should be paid to the applicable procedure rules and practice directions:
- i) Civil courts: part 21 of the Civil Procedure Rules 1998 and practice direction (PD) 21. The certificate of suitability is form N235
- ii) Family court: part 15 of the Family Procedure Rules 2021 and PDs 15A and 15B. The certificate of suitability is form FP9, and
- iii) Court of Protection: Court of Protection Rules 2017 and PD 17A. The certificate of suitability is form COP22.
If someone has fluctuating levels of capacity such that, at times, it is anticipated that they would not meet the relevant capacity threshold, as a protective measure, a litigation friend should be appointed. Taking into account fluctuating levels of capacity, it would not be practical for a capacity test to be carried out in relation to each particular decision during the course of the litigation. As stated in Bailey v Warren  EWCA Civ 51, at paragraph 178, a person’s capacity to litigate “cannot be judged piecemeal”.
A litigation friend will continue in their appointment until the court orders otherwise. This may mean that a litigation friend is appointed even where, at times, the ‘protected party’ could be considered to have a sufficient level of capacity to conduct the litigation. Where this occurs, if the (former) ‘protected party’ has regained sufficient levels of capacity such that they would be able to conduct the litigation themselves, an application should be made to court to terminate the appointment of the litigation friend. The application would need to be supported by medical evidence and if the (former) ‘protected party’ is making the application, they would need to state whether they intend to continue with the litigation.
Nevertheless, if the recovery of capacity is considered to be temporary, the continued appointment of the litigation friend is necessary. In these circumstances, it would be the responsibility of the litigation friend to ensure that they are involving the protected party in the litigation, in order to take account of their views.
Requirements and responsibilities of a litigation friend
There are three requirements that apply to a person to be appointed as a litigation friend:
- a) that they can fairly and competently conduct proceedings on behalf of the protected party
- b) that they do not have a conflict of interest, and
- c) where the protected party is a claimant, that they undertake to pay any costs which the… protected party may be ordered to pay in relation to the proceedings, subject to any right they may have to be repaid from the assets of the… protected party.
A litigation friend has a duty to conduct proceedings ‘on behalf of’ a protected party. The editors of the White Book (2021) commented that the meaning of this “is not elaborated in the rules but doubtless would include doing anything which in the ordinary conduct of any proceedings is required or authorised by a provision of the CPR [Civil Procedure Rules] to be done by a party to the proceedings”. A litigation friend has a duty to take all steps for the benefit of the protected party and to represent the views of the protected party.
Litigation friend: costs
Under the CPR, a litigation friend is able to recover such reasonable costs and expenses from any sums recovered. Nevertheless, becoming a litigation friend is not without risk in respect of costs and a litigation friend should be provided with information concerning potential liability in respect of costs. Under section 51 of the Senior Courts Act 1981 (SCA), the court has jurisdiction to award costs against a non-party, including litigation friends.
It is important to note that the recent case of Glover v Barker  EWCA Civ 1112, has provided clarity on the position of costs orders where a litigation friend is appointed. The position in respect of costs orders for a litigation friend acting for a claimant protected party is different from a litigation friend acting for a defendant protected party.
A litigation friend acting for a claimant will be liable for costs if a claim is unsuccessful. In such circumstances, a litigation friend may have the ability to recover such costs from the protected party (such as if the litigation friend was a deputy authorised to act by the CoP). In respect of proceedings, as set out at point c) above, there is a requirement for a claimant’s litigation friend to pay any costs which the protected party may be ordered to pay in relation to the proceedings. Therefore, where a costs order is made, the undertaking will apply. If no costs order is made, under common law, a claimant’s litigation friend will remain liable for costs subject to their ability to recover such costs from the protected party (albeit the court will still have jurisdiction under section 51 of the SCA to make an order).
The position is different for a litigation friend acting for a defendant. A litigation friend will only be liable in respect of costs in cases involving “bad faith, improper or unreasonable behaviour and prospect of personal benefit” as well as gross misconduct. This provides comfort to litigation friends and clearly in Glover, thought was given to the matter of policy: it would not be helpful if a defendant’s litigation friend were vulnerable to an adverse costs order, as this would act as a deterrent to taking on the role.
Settlement prior to proceedings being issued
The appointment of a litigation friend is a procedure of the court, but it is common for disputes to settle prior to proceedings being issued. There may be a person lined up to be a litigation friend, but prior to proceedings being issued, it is not possible for a litigation friend to be formally appointed. Therefore, a potential litigation friend would not have the requisite authority to agree to a settlement without the blessing of the court. In this instance, where a party lacks capacity to litigate and an agreement is reached for a settlement, compromise or a payment which relates to the claim, an application to court for approval of the agreement must be made.
The question of whether a protected party has the ability to manage an award of the court or settlement proceeds is a separate matter and is not addressed in this article.
Dealing with the unexpected: a working example
Issues of capacity can occur unexpectedly at any time. Take the example of client A, who had a successful career and no history of mental health issues. Client A was involved in court proceedings which were straightforward. Client A then suffered a sudden, acute and entirely random psychotic episode, resulting in extreme behaviour that led to client A being detained under the Mental Health Act 1983.
In respect of the ongoing proceedings, the practical problem for client A’s solicitors was that client A suddenly disappeared, and the other party to the proceedings began to take steps to capitalise on client A’s absence. The instructing solicitors were informed by a third party that client A was detained in hospital ‘under section’. Given the psychotic episode was entirely random, client A had taken no steps to put in place any measures (such as lasting powers of attorney) to assist in the event of such a situation.
For the purpose of the court proceedings, it was necessary to provide confirmation from medical professionals in respect of client A’s circumstances. However, the hospital where client A was detained was – quite rightly – not even able to confirm that client A was a patient. In any event, client A would certainly not have had the requisite level of capacity to give instructions at this time. In the meantime, it was not possible to make an application to appoint a litigation friend. This is because it is a prerequisite for a litigation friend to be appointed that there is evidence to show that a person lacks capacity (that they are a ‘protected party’). Without access to client A, carrying out a capacity assessment was not possible. On a practical level, it took weeks to be able to receive the requisite confirmation from the medical professionals that client A had indeed been ‘under section’.
Client A recovered relatively quickly and within of a couple of months they were considered to have sufficient levels of litigation capacity for the proceedings to continue. However, client A was still considered to be extremely vulnerable. From a capacity perspective, the issues did not end here and the following measures were put in place with the ultimate purpose being to protect client A and to allow for the litigation to continue smoothly:
- client A’s doctor provided regular reports concerning client A’s mental capacity
- the solicitors instructed an expert familiar with the MCA and with producing capacity reports for the purpose of the court to carry out a capacity assessment in respect of client A’s capacity to litigate
- an internal template checklist on capacity issues was produced containing items tailored to client A’s circumstances – this was filled out regularly (initially every week) and saved to the file, and
- regular diarised videoconference calls were held with client A specifically to serve as a ‘check-in’ to make sure that capacity issues were addressed and discussed with client A rather than simply issues concerning the litigation.
Client A also made lasting powers of attorney in the event that they again lost requisite levels of capacity.
The subject of litigation capacity is complicated – there are many twists and turns depending on the circumstances. It is important that solicitors ensure that they understand not just the technical aspects of the law but the practical steps to be taken.
Where there are doubts over a person’s capacity or if they have fluctuating levels of capacity, it is important to address these issues at the outset. This can cause frustration for clients who just want to move forwards as swiftly as possible. However, it is absolutely necessary in order to avoid having to unravel capacity issues at a later stage. It is also crucial that, if there are capacity issues that are addressed at the outset, thought should be given to the necessity of continued assessment and what that should look like from a practical perspective.