Mental capacity to litigate refers to an individual’s ability to follow, understand and engage with litigation proceedings. This includes the process of conducting affairs through a solicitor.
How is it measured?
While the Two Stage Test (or Mental Capacity Assessment) is used to frame the assessment for capacity, case law requires we also address specific aspects in terms of capacity to litigate – also known as ‘litigation capacity’.
In the case of Masterman-Lister (2002), it was concluded that the decision to ‘conduct litigation proceedings’ is separate from the result of said proceedings, which would be deemed a separate decision, that would require a separate Mental Capacity Assessment. This case further establishes the test required:
‘the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings’Case of Masterman-Lister (2002), Point 75
The Law Society further highlights the case of Dunhill v Burgin (2014) where it is recognised that there is unlikely to be any ‘real difference’ between the assessment in common law or the Mental Capacity Act (MCA, 2005). This is because the MCA is decision specific, and the assessment and threshold for capacity must be tailored to the particular context.
How to document capacity to litigate
In order to document capacity to litigate, professionals should complete the form certificate as to capacity to conduct proceedings, which can be downloaded from the government website. This form can be accompanied by an independent Mental Capacity Report to expand on specific sections, including the assessment interview, professional rationale and outcome. Either or both can be completed at the instructing party’s request.
It is important to note that capacity to litigate should be determined as soon as possible, to ensure the relevant person has the right support in place to pursue their litigation case and prevent delay.
If the relevant person (or ‘protected party’) has been determined to lack mental capacity to litigate then that person will require a ‘litigation friend’. This is a formal role assigned to represent and act upon someone’s behalf who has been demonstrated to lack capacity.
There are several circumstances where a COP3 form may need to be completed, depending on the Court being presided in – this is to be directed by the instructing party. This COP3 form may also require a full mental capacity assessment submitted as supporting evidence.