The CJC set up a working group in 2022 to consider the issue. Its final report on the matter, published last week, notes ‘the absence of any clear procedure or guidance means that procedures are developed on an ad-hoc basis, which is inefficient and leads to inconsistency of approach… Moreover, a great deal of work that has to be undertaken by legal representatives, charities, and statutory bodies in supporting litigants who may lack capacity is unpaid and is unsustainable’.
The report, ‘The procedure for determining mental capacity in civil proceedings’ recommends the presumption of capacity not be used to avoid litigation capacity being determined, even if it may be difficult to obtain evidence. Other recommendations include that litigation capacity issues should be identified and determined at the first available opportunity.
