Philip Percival, R (on the application of) v Police & Crime Commissioner for Nottinghamshire & Anor

Litigation capacity is a functional question directed to the person’s ability to make the particular decisions required in the proceedings concerned. The court must apply the statutory test, the presumption of capacity and the balance of probabilities. Medical evidence is important but is not determinative; the judge must assess all relevant evidence, including the person’s conduct and ability to communicate. Capacity may differ between proceedings where the demands of the litigation differ. An earlier finding of incapacity in related proceedings does not determine present capacity in judicial review proceedings.

The claimant brought judicial review claims challenging decisions by the Police and Crime Commissioners for Nottinghamshire and Derbyshire not to review earlier decisions by the relevant Chief Constables concerning police misconduct complaints.

The issue was whether the claimant had capacity to conduct those claims. In related personal injury proceedings, HHJ Gosnell had previously found sufficient evidence of incapacity, vacated the trial and stayed the claim pending the appointment of a litigation friend. The claimant had not sought to lift that stay, and the earlier medical evidence had become several months out of date. The court therefore had to determine the claimant’s current capacity in relation to the judicial review proceedings.

1. Capacity determined. The court was satisfied, on the balance of probabilities and applying the presumption of capacity, that the claimant had litigation capacity to conduct the judicial review proceedings.
2. Functional and proceeding-specific assessment. Applying sections 2 and 3 of the Mental Capacity Act 2005, the relevant question was whether the claimant could understand, retain, use and weigh relevant information when making decisions in these claims, and communicate those decisions to the court and the defendants. Capacity focuses on the ability to make the particular decision concerned. It may therefore produce different conclusions in different proceedings, especially where the proceedings impose materially different demands.
3. Evidence. The judge was required to determine capacity as a matter of fact. Medical evidence was relevant but not conclusive, particularly where it was outdated or had not been formed by reference to the correct legal test. The claimant’s presentation, conduct of the judicial review proceedings over a prolonged period and ability to explain his position were relevant evidence.
4. Earlier finding. The earlier order in the personal injury proceedings did not determine the claimant’s current capacity to conduct the judicial review claims. The court declined to seek updated evidence through the Official Solicitor because that would cause significant further delay and was unlikely to advance the assessment.

The judgment was a first-instance determination of the claimant’s capacity to conduct the judicial review proceedings. It recorded that HHJ Gosnell had earlier vacated the trial and stayed related personal injury proceedings pending the appointment of a litigation friend.