GRM v Liverpool University Hospitals NHS Foundation Trust

Where a litigation friend is sought during existing proceedings, the court should avoid satellite litigation about capacity unless the issue is genuinely necessary to protect a party’s position or determine the litigation. A suitable litigation friend may be appointed on responsible evidence, without directing a separate preliminary capacity trial that causes disproportionate delay and expense. Any effect of impaired capacity on matters such as quantum should ordinarily be determined at trial. Capacity is assessed at the present time; possible future improvement does not displace a current finding of incapacity.

This was an appeal from an order of District Judge Rome, sitting as a Judge of the High Court, dated 13 September 2024. The order appointed the Official Solicitor as the claimant’s litigation friend, but also directed a preliminary issue hearing on the claimant’s capacity to conduct litigation and manage funds, with further factual and expert evidence.

The underlying claim concerns alleged clinical negligence between 2009 and 2015. The claimant challenged the directions requiring the preliminary issue hearing. The central questions were whether the court was entitled to determine present incapacity and appoint the Official Solicitor on the evidence available, and whether a separate capacity hearing was justified.

1. Appeal allowed. The unchallenged appointment of the Official Solicitor and associated provisions remained effective. The directions in paragraphs 4 to 16 of the order dated 13 September 2024 were set aside.
2. Capacity is governed by the Mental Capacity Act 2005. The court must identify the decision in question and the information relevant to it, then determine whether the person is unable to make that decision. It must also establish a causative nexus between the inability and an impairment of, or disturbance in the functioning of, the mind or brain. The functional elements include understanding, retaining, and using or weighing relevant information.
3. The procedural rules in the Civil Procedure Rules 1998, Part 21, implement that statutory framework for protected parties. Where proceedings began without a litigation friend, appointment under CPR 21.6 requires the court to be satisfied that the proposed litigation friend can act fairly and competently, has no adverse interest, and, where relevant, undertakes responsibility for costs.
4. Applying Folks v Faizey [2006] EWCA Civ 381, the court held that the defendant had no real interest requiring a separate capacity trial. The Official Solicitor was plainly suitable, and appointment caused no material prejudice. Court approval of a settlement was a minor burden outweighed by the certainty and protection it provided. Any impact of incapacity on quantum could be determined at trial.
5. The evidence, including the claimant’s COP3 report and the expert material, entitled the court to conclude that the claimant presently lacked capacity. The possibility that his mental condition might improve with treatment was relevant to future issues, including quantum, but not to his current capacity. The earlier order was therefore wrong in principle insofar as it both determined incapacity and directed a further hearing to determine the same question.

• High Court (King’s Bench Division): Appeal from the order of District Judge Rome, sitting as a Judge of the High Court, dated 13 September 2024. The appeal was allowed and the directions concerning a preliminary capacity issue were set aside.