Royal Bank of Scotland Plc v AB

An order for assessment of a litigant’s capacity is directed to determining how litigation should proceed and whether a litigation friend is required. It is not a forensic device for obtaining evidence relevant to the merits, credibility or quantum of the claim. Capacity to litigate is issue-specific and time-specific, and may be transient. Although an employment tribunal erred by failing to reconsider whether assessment was required after a claimant’s striking presentation, the error did not invalidate the proceedings or justify remission where the tribunal had proceeded on the assumption of capacity and had evaluated whether the claimant was exaggerating her condition.

The respondent brought employment claims arising from her employment by the appellant, including constructive unfair dismissal and disability discrimination. Following a substantial remedies hearing, the Employment Tribunal awarded damages of £4,670,535.

The appellant appealed on several grounds. The Employment Appeal Tribunal, in UKEAT/1087 & 0266/18/DA, dismissed all but one ground, holding that the Employment Tribunal should have reconsidered whether the respondent’s capacity to litigate required assessment after her presentation during the remedies hearing. It nevertheless refused to remit the case or revisit the award. The appellant’s second appeal concerned whether the procedural error invalidated the proceedings, or whether remission could produce evidence assisting its case on exaggeration, credibility or quantum.

1. Appeal dismissed. The Employment Appeal Tribunal was right that the Employment Tribunal had good reason to reconsider whether an assessment of the respondent’s capacity to litigate was required. Her presentation on 25 July 2017 provided the necessary trigger. Without that trigger, seeking assessment merely to explore credibility would have been tantamount to an abuse of process.
2. The purpose of a properly conducted and thorough capacity assessment is to determine how litigation should proceed and whether a litigation friend is required. It is not to aid either party’s substantive case. Capacity to litigate is issue-specific and time-specific, and may be transient. The nature and format of the assessment should not be dictated by either party.
3. The failure to obtain an assessment did not invalidate the Employment Tribunal proceedings. The case was materially different from Dunhill v Burgin (Nos 1 and 2) [2014] 1 WLR 933: there had been no conclusion that the respondent lacked capacity and no order by consent. The respondent, acting through a litigation friend, did not seek to reopen the Employment Tribunal’s decision on capacity.
4. There was no straight-line relationship between capacity to litigate and the ability or willingness to give evidence. A finding that a litigant had capacity would not establish that her presentation was false or exaggerated. The Employment Tribunal had evaluated whether the respondent was exaggerating her condition, and its findings were unassailable on appeal.
5. No legitimate purpose would be served by remission to determine the respondent’s capacity in July 2017. The procedural irregularity had not infected the outcome or deprived the appellant of due process.

• Court of Appeal (Civil Division): dismissed the appeal from the Employment Appeal Tribunal.
• Employment Appeal Tribunal: in UKEAT/1087 & 0266/18/DA, dismissed all but one ground of appeal. It held that the Employment Tribunal should have reconsidered whether an assessment of the respondent’s capacity to litigate was required, but declined to remit the case or revisit the award.
• Employment Tribunal: found constructive unfair dismissal and disability discrimination and awarded damages of £4,670,535.