Guide To Capacity To Be A Party To Proceedings

The lack of capacity to be a party to proceedings arises where a person has mental health problems such that they need help in deciding what action to take on relation to those proceedings based on their lawyer’s advice. A person who lacks capacity needs a litigation friend to be appointed before the proceedings can go any further. There is a presumption that everyone has capacity. The onus is on the person alleging incapacity to raise the issue and to satisfy the Court of the lack of capacity.

In  S v Floyd and Anor [2008] EWCA Civ 201 Mummery LJ stated at paragraph 75,

It is clear from Masterman-Lister v Brutton & Co (No 1) [2002] EWCA Civ 1889, [2003] 1 WLR 1511, that the test of capacity is issue specific. It is not a question of whether the litigant has capacity to manage and administer his affairs generally, but whether he has capacity to conduct the particular legal proceedings he is concerned with. The relevant test was described by Chadwick LJ in Masterman-Lister as follows at paragraph 75:

"For the purposes of … CPR Pt 21 the test to be applied … 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. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law whether substantive or procedural should require the interposition of … a litigation friend".

The Rules

The starting point here is the Civil Procedure Rules and the Mental Health Act 2005.