Litigation capacity is a person’s ability to conduct legal proceedings. It is a dynamic and longitudinal process, requiring active understanding, retention and use of salient information to weigh up related decisions and give direction to a legal representative.
Litigation capacity in case law
In the appeal case of MacPherson vs Sunderland City Council (2024, EWCA Civ 1579) we are reminded of the responsibilities of parties to order a formal test of capacity to litigate if there is a reasonable belief that the instructing party may lack capacity.
The case reminds us that this is not in any way a defamation of character, or a negative process – rather, it is a statutory right and protection, enabling appropriate steps to be taken in providing support of a litigation friend, if so required. King’s Council and Barrister Alex Keene provides a useful discussion regarding this court case and former associated hearings.
The order of steps for the Mental Capacity test
Within this same case, the judge provided further clarification on the correct order in which to carry out the Mental Capacity Test, as updated and corrected within the case of Local Authority vs JB (2021). This should be the Functional step followed by the Diagnostic step.
The judge also provided further argument that the Code of Practice on this matter remains out of date; a further reminder (if any were needed) that it is absolutely essential that anyone working in this area have a good understanding of current case law.
Support with litigation capacity
For independent professional assessments of Litigation Capacity (also known as ‘Capacity to Litigate’), please do visit our service pages or contact us to find out more.