Eesa Mohammed v Adam Ali & Anor

Where litigation capacity is disputed, the court may appoint a litigation friend on the claimant’s evidence-only basis so that proceedings can progress. The appointment does not determine the substantive issue of capacity, which ordinarily remains for trial. A defendant should participate in the appointment process only where it has a real financial or other interest which may be prejudiced. A separate preliminary capacity hearing is generally inappropriate where it would duplicate the trial, increase costs, or consider only part of the evidence. An appellate court should interfere with case-management decisions only for a clear error of principle, serious procedural irregularity, or a decision outside the generous ambit of reasonable disagreement.

The claimant brought a substantial personal injury claim arising from a road traffic accident involving an uninsured driver. His experts considered that he lacked litigation capacity, while the defendant disputed that position and later alleged fundamental dishonesty. A litigation friend had previously been appointed on an evidence-only basis, but the trial judge removed her after concerns arose about her conduct and declined to appoint a substitute without first determining capacity at a separate hearing.

The trial judge held a live-evidence capacity hearing and found that the claimant had capacity. The Motor Insurers Bureau appealed the decision to hold that hearing, the refusal to adjourn, the refusal to transfer the claim to the High Court, and costs. The central issues concerned the proper procedure for appointing a litigation friend where capacity is disputed and whether capacity should be determined as a preliminary issue.

1. Appeal allowed in part. Permission to appeal was granted on all grounds. The appeal succeeded on the procedural decision to hold a separate live-evidence hearing to determine litigation capacity before the trial. The appeal was dismissed on the transfer grounds. Costs were reserved for further argument.
2. The decision to remove the existing litigation friend was not a variation of the earlier order under CPR r.3.1(7). It was a decision under CPR Part 21 concerning the litigation friend’s continuing suitability. There had been a substantial change in circumstances because allegations of fundamental dishonesty had been raised.
3. Folks v Faizey established the relevant approach. A litigation friend may be appointed on an evidence-only basis where the necessary consents and forms are provided, there is sufficient evidence supporting the appointment, and the application is bona fide. The defendant is generally not entitled to contest the appointment unless it has a financial or other interest which may be prejudiced. Appointment does not determine any pleaded issue concerning the claimant’s capacity.
4. The Recorder misdirected himself in concluding that he could not appoint a substitute litigation friend until litigation capacity had first been determined at a contested hearing. He could and should have appointed the claimant’s sister on the evidence-only basis. The defendant would not have been prejudiced, because it could still challenge capacity and the expert evidence at trial.
5. The preliminary hearing was procedurally wrong and unnecessary. It increased expense, duplicated the trial process, and considered only part of the evidence relevant to the disputed capacity and dishonesty issues. The fact that the claimant ultimately succeeded on capacity did not validate the procedure.
6. The challenge to the refusal to transfer the claim to the High Court failed. Although the Recorder did not expressly list the factors in CPR r.30.3(2)(a)–(e), the judgment and submissions showed that he had considered the value, complexity, convenience, need for specialist judges and public importance of the claim. The decision was within the permissible ambit of case-management discretion.
7. The relevant orders directing and disposing of the preliminary capacity hearing were set aside. No substitute litigation friend was appointed on appeal because the claimant did not seek one, no updated consent was available, and the Official Solicitor appointment process would cause delay. The claim was to continue in the Sheffield County Court, subject to further directions.

The judgment concerned conjoined appeals from decisions made by Mr Recorder Cameron during the quantum trial in the County Court. The High Court granted permission to appeal on all grounds, allowed the appeals concerning the separate preliminary capacity hearing, dismissed the transfer grounds, and reserved costs for a later hearing.