KDS v EUI Limited

Litigation capacity is decision-specific and time-specific. Under the Mental Capacity Act 2005, the question is whether, at the material time, an impairment or disturbance of mind or brain makes the person unable to make the particular litigation decisions. The court must consider practicable support and appropriate explanations. Capacity to manage everyday choices, and a willingness to make decisions others regard as unwise, do not answer whether a person can conduct complex litigation. A person who can understand information when it is broken into manageable parts may nevertheless lack capacity if unable reliably to retain, use or weigh it. On the evidence, the claimant therefore required a litigation friend, subject to ongoing review.

The claimant suffered traumatic brain injury and psychiatric and cognitive difficulties after a road traffic accident. He had initially been represented by a professional litigation friend but applied for a determination that he had capacity to conduct the proceedings and instruct his solicitors directly. His solicitors and litigation friend adopted a neutral position. The defendant required the presumption of capacity to be rebutted. Following directions, further independent neuropsychiatric evidence was obtained and the application was determined on the papers by agreement. The central issue was whether, despite support and reasonable adjustments, the claimant was unable to understand, retain, use and weigh information relevant to conducting complex, high-value litigation.

The court determined the preliminary issue on the papers after the claimant had been offered an in-person hearing and an opportunity to make representations. The parties agreed that the expert evidence could be considered without oral evidence.

1. Under rule 21.2 of the Civil Procedure Rules 1998, a person who lacks capacity to conduct proceedings is a protected party who must have a litigation friend. The court applied the presumption of capacity and the principles that capacity is decision-specific and time-specific.
2. Under sections 2 and 3 of the Mental Capacity Act 2005, the court had to decide whether, on the balance of probabilities, an impairment or disturbance in the functioning of the claimant’s mind or brain made him unable to make the particular decisions required by the litigation. The court also considered the need for practicable assistance, appropriate explanations and reasonable adjustments. It recognised that a capacitous person may make decisions others regard as unwise.
3. The court referred to Masterman-Lister on the need to investigate capacity when there is reason to suspect its absence, and to RP v United Kingdom [2013] 1 FLR 744 concerning procedural safeguards under Article 6(1). The claimant had been given an opportunity to participate and to have his views placed before the court.
4. The later opinion of Dr Achinivu was preferred to his earlier opinion because it was based on fuller information. Dr Obinwa’s independent assessment was clear, balanced and robust. Although the claimant could make straightforward everyday decisions and might understand information when presented in manageable segments, he could not reliably retain, process, use or weigh complex litigation information, even with support. That inability resulted from cognitive and psychiatric impairments.
5. The court found that the claimant lacked capacity to conduct the proceedings and should continue to be represented by a litigation friend. His capacity was to remain under general review because it might improve, but further medical evidence was not required unless there was reason to believe that his presentation had changed.