Karcihan Meric v Andrew Navis & Anor

A person is not unable to conduct litigation merely because they hold irrational or delusional beliefs, or make decisions which appear unwise. Under the Mental Capacity Act 2005, the court must identify the relevant litigation decision and information, determine whether the person is unable to make that decision, and then determine whether the inability results from an impairment or disturbance in the functioning of the mind or brain. The ability to understand, retain, use or weigh relevant information, and communicate a decision, must be assessed in the context of the particular litigation. Direct observation of a litigant’s conduct may provide important evidence, although the statutory test remains controlling. Capacity was established on the evidence, including the litigant’s ability to analyse documents, respond to developments and make decisions during hearings.

The claimant appealed against an order of HHJ Bird in the County Court at Manchester dated 19 August 2024. That order dismissed his application to declare that he had lacked capacity to conduct litigation from 1 September 2022, and to set aside subsequent orders, including permission to discontinue his personal injury claim.

The appeal also concerned the second defendant’s application to set aside permission to appeal and applications by two prospective litigation friends. The central issue was whether the claimant could use and weigh information when deciding litigation matters, particularly when serving a notice of discontinuance on 11 May 2023.

1. Appeal dismissed. The application to set aside permission to appeal was dismissed. The applications by Mr Mercer and Mr Ozdemir to be appointed litigation friends were also dismissed.
2. The statutory framework was supplied by the Mental Capacity Act 2005. A person is presumed to have capacity, the balance of probabilities applies, practicable assistance must first be provided, and an unwise decision does not by itself establish incapacity. The test has two stages: whether the person is unable to make the relevant decision, and whether that inability is caused by an impairment or disturbance in the functioning of the mind or brain.
3. The relevant decision and information had to be identified in the context of conducting the litigation, including the decision to discontinue. The only disputed functional limb was whether the claimant could use or weigh information. He could understand and retain information and communicate decisions.
4. Following A Local Authority v JB [2021] UKSC 52, the court treated the inability to make the relevant decision as preceding the causative inquiry. The claimant’s application failed at the first stage. His conduct at hearings, detailed and organised correspondence, ability to respond to live developments, and ability to analyse and cross-reference material demonstrated that he could use and weigh information and make litigation decisions.
5. The claimant’s belief in a conspiracy might be delusional, but that fact was not sufficient to establish incapacity. Nor did the capacity assessment undertaken in police custody materially answer the different question of capacity to conduct complex litigation.
6. The court upheld HHJ Bird’s conclusion that the claimant was the sole author of his emails. The proposed litigation friend Mr Mercer was dominated by the claimant and did not understand the process. This further demonstrated the claimant’s ability to understand and react to developments in the litigation.
7. The court was confident that the claimant also had capacity in May 2023, when he served the notice of discontinuance. The permission to discontinue therefore remained effective.

• High Court (King’s Bench Division): appeal from the County Court at Manchester dismissed. The court also dismissed the application to set aside permission to appeal and both applications for appointment of a litigation friend.
• County Court at Manchester: HHJ Bird’s order dated 19 August 2024 dismissed the claimant’s application to declare incapacity and set aside subsequent orders.