Background
KDS was seriously injured in a 2022 M6 road traffic collision, suffering, among other injuries, a traumatic brain injury. The collision also killed his partner’s daughter and the defendant driver. The personal-injury proceedings were issued with a professional litigation friend acting for KDS.
KDS later maintained that he had capacity to conduct the proceedings and sought a preliminary determination. The court obtained further neuropsychiatric evidence focused on litigation capacity. KDS did not attend the hearing or make direct representations, but his legal team made written submissions. The parties agreed the issue could be decided on the papers.
The Court’s Holding
HHJ Howells, sitting as a Judge of the High Court, held on the balance of probabilities that KDS lacked capacity to conduct the litigation. Although capacity is presumed and KDS could make many ordinary day-to-day decisions, the relevant question was his capacity to make the complex decisions required in this high-value claim.
The court accepted Dr Obinwa’s evidence that KDS’s mild neurocognitive disorder and post-traumatic stress disorder prevented him from reliably retaining, using and weighing relevant litigation information. Reasonable adjustments, segmented explanations and support could assist understanding at the time, but did not overcome his inability to retain and process the information sufficiently for informed litigation decisions. He was therefore to continue through a litigation friend.
Key Takeaways
- Litigation capacity is decision-specific and time-specific; competence in everyday choices does not establish capacity for complex proceedings.
- The presumption of capacity can be rebutted where cogent expert evidence shows that cognitive and psychiatric impairments prevent a party from using and weighing relevant information.
- Capacity must be kept under review where circumstances may change, though renewed medical evidence is not required without reason to think the person’s presentation has altered.
Why It Matters
The decision illustrates the functional application of sections 2 and 3 of the Mental Capacity Act 2005 in civil litigation. The court distinguished an unwise but capacitous choice from an inability, caused by impairment, to retain and weigh the information needed to make the choice.
It also underlines the importance of giving a person who disputes incapacity a meaningful opportunity to put forward their views, while ensuring that the court has focused and properly tested medical evidence before determining whether a litigation friend is required.