CJC Mental Capacity Report

The Civil Justice Council has now published its final report on the procedure of determining mental capacity in civil proceedings. The CJC can only make recommendations and it will be over to the CPRC to look at the implementation of the same.

It is welcomed that the matter of capacity in litigation is getting considered, particularly seeking to make the process less adversarial and clearer for those involved.

That said key costs recommendations around non-means tested legal aid and a fund of last resort have already been rejected (at this stage) by the Ministry of Justice.

The full report is available here.

The key recommendations are as follows:

1.      A clear procedure is needed for cases where the court is required to determine a party’s litigation capacity. It is recommended that CPR 21 and Practice Direction be updated to address the same.  This should give guidance as to when medical evidence will be required.

2.      Consideration should be given to making a provision for appointment of a Litigation Friend prior to a claim being issued.

3.      The presumption of capacity should not be used to avoid proper investigation and determination into capacity. A party or legal representative should be able to raise the issue with the court without a formal application.

4.      Court should have the power to order disclosure of relevant documents from third parties where it is necessary and proportionate to do so.

5.      Guidance should be given on the nature of the legal representatives’ role at a hearing to determine the issue of a party’s litigation capacity.

6.      The court should have the power to have any hearing on determination of capacity to be heard in private, subject to anonymity and/or reporting restrictions orders.

7.      Non-means tested legal aid should be made available for cases within the scope of legal aid, limited to the investigation and determination of a party’s litigation capacity. The CPRC have confirmed the MoJ will not proceed with this recommendation at this stage.

8.      Once it is determined that the court needs to decide a party’s capacity then no steps should be taken in the case without the permission of the court and the court will stay any orders previously made in the proceedings.

9.      Legal aid regulations should be amended to make provision for providers to sign legal aid forms to apply for legal aid for the purpose of investigating the issue of capacity.

10.  A ‘fund of last resort’ should be established by Government “to ensure the court can fulfil its function of managing cases to ensure access to justice for litigants who may lack the capacity to conduct their own litigation.”  The CPRC have also confirmed that they will not proceed with this recommendation either.  

11.  A new judicial working group on litigation capacity should be established.

12.  Judicial College should review judicial training materials on capacity issues.

13.  The progress of recommendations made should be reviewed by the CJC.

We are always happy to talk any aspect of costs. Should you have any queries arising from this blog (or in general), please get in touch for a chat - call 01482 534567 or email info@carterburnett.co.uk