Introduction

An integral yet little discussed part of our role as family law professionals is to ensure that our clients, and other parties and witnesses, are able to fully engage in the proceedings.1 This can relate to vulnerable parties, such as parties who are victims of domestic abuse or parties with a disability (Family Procedure Rules 2010 (SI 2010/2955) (FPR) Part 3A2), or this can relate to protected parties, who lack the requisite capacity to give instructions within proceedings or to conduct proceedings generally (FPR Part 153). In respect of the former, vulnerable parties may be supported via ‘participation directions’ to facilitate their involvement. In respect of the latter, where a party lacks litigation capacity, FPR Part 15 sets out the duties of the relevant legal representatives and the steps the court must take before any proceedings can progress.

This article aims to provide a practical overview of how litigation capacity is assessed within family proceedings and the steps we, as family law professionals, must follow if a party or intended party lacks litigation capacity.

Definition

Mental capacity means the ability to understand information and make decisions about one’s life.

Litigation capacity is defined as the ability of a litigant in proceedings to conduct the proceedings, and the ability to partake in and follow the proceedings. The legal presumption is that an adult party or intended party to proceedings has the capacity to conduct those proceedings. A lack of capacity must be evidenced.

A person may lack capacity for various reasons, for example:

• disability;
• intellectual impairment;
• permanent or temporary neurological impairment;
• mental health reasons (severe depression or anxiety).

It is important to remember that just because someone falls within one of the above groups, that does not automatically mean that they will lack capacity.

Sections 2 and 3 Mental Capacity Act 2005 (MCA 2005) explain what is meant by a lack of capacity:

‘2 People who lack capacity

(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

(2) It does not matter whether the impairment or disturbance is permanent or temporary.

(3) A lack of capacity cannot be established merely by reference to –

(a) a person’s age or appearance, or

(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.

(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities. …

3 Inability to make decisions

(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable –

(a) to understand the information relevant to the decision,

(b) to retain that information

(c) to use or weigh that information as part of the process of making the decision, or

(d) to communicate his decision (whether by talking, using sign language or any other means)

(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is unable to understand an explanation of it given to him in a way that is inappropriate to his circumstances (using simple language, visual aids or any other means).

(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of –

(a) deciding one way or another, or

(b) failing to make the decision.’

There are a number of different aspects to a party’s litigation capacity. A party may have the capacity to make a certain decision or deal with a certain application but not another. Capacity is decision- and time-specific.

A party who does not have litigation capacity (this having been evidenced) is referred to as a ‘protected party’.

A litigation friend is the collective label given to a person appointed to assist a protected party with their litigation. This includes the Official Solicitor, but can be a friend or relative.

Should the litigation friend be a relative/friend or should it be the Official Solicitor?

Where a person lacks the capacity to litigate, it is necessary for someone to be appointed to stand in that party’s shoes as their litigation friend, who will conduct proceedings and give instructions on their behalf. As we will come onto later, this is not an informal process but requires either notification to or an order of the court. This is the case whether the matter is in court or is being dealt with via non-court dispute resolution (NCDR). We have set out below the process for appointing a litigation friend. Where proceedings have commenced but the parties are engaging in a form of NCDR, the FPR applies and governs the appointment of a litigation friend insofar as the proceedings are concerned. If proceedings have not commenced and the parties are engaging in NCDR entirely outside the court process, there are no specific rules governing the appointment of a litigation friend. However, it would not be possible to act for a client where there is a concern that they may lack capacity, and so practitioners should still follow the process set out below, including obtaining medical evidence to satisfy themselves as to whether a party has the capacity to litigate, which if proceedings are commenced, could later be relied on for the completion and serving of a Certificate of Suitability.

Role of a litigation friend

A litigation friend can be a friend or family member of the protected party. They may be someone who has separately been appointed as a deputy by the Court of Protection, or someone whom the protected party has given power of attorney. However, these are distinct roles and a litigation friend could be someone completely different.

A litigation friend must be over 18 years old, and be able to fairly and competently conduct proceedings on behalf of a protected party. In order to act, a litigation friend must be satisfied that they do not have any interests in the proceedings adverse to that of the protected party. For example, if they had an interest in a property owned by the protected party and which is the subject of financial remedy proceedings, this could potentially lead to a conflict of interest.

Once appointed, a litigation friend will be responsible for the following:

• signing any legal documents;
• attending court hearings;
• approving documents (e.g. statements, barristers’ notes, case summaries, etc);
• making decisions about the case, such as whether to accept offers made by the other side;
• talking to the protected party’s solicitor about developments in the case, receiving advice and giving instructions on their behalf (including in respect of potential offers); and
• paying any costs ordered by the court.

It is important to remember that a protected party may be able to communicate their views on certain aspects of the case. In so far as it is possible, the litigation friend should therefore try to talk to the protected party about the case, in order to ascertain their wishes and feelings. However, where this is not possible, the litigation friend must still make decisions on behalf of the protected party, ensuring in every case that those decisions are made in the protected party’s best interests.

It is not uncommon for people to significantly under-estimate the role of a litigation friend. There is a lot of work involved, especially in the run-up to a hearing. Acting as a litigation friend will require a serious commitment of time and energy. It is not a decision that people should take lightly. As this is not a professional appointment, there is no remuneration for the litigation friend. They would, however, typically be reimbursed for any expenses they have had to incur on behalf of the protected party, for example, travel costs or copying costs.

Practitioners should also be aware that litigation friends are subject to the same cost rules as other parties, and the court can make costs orders against them directly, should it be determined that they have litigated poorly.4

The role of the Official Solicitor

The Official Solicitor is an officer of the Supreme Court appointed by the Lord Chancellor. The appointment of the Official Solicitor as a litigation friend is a last resort,5 and is appropriate only in cases where there is no other suitable person who is able and willing to act as a litigation friend for the protected party.

In order for the Official Solicitor to consent to act as a litigation friend, the following criteria must be met:

• the party or intended party is a protected party;
• there is security for the costs of legal representation for the protected party which the Official Solicitor considers satisfactory; and
• the appointment is a last resort.

If it becomes necessary from the outset of the solicitor–client relationship for the Official Solicitor to be appointed, the solicitor should write to the Office of the Official Solicitor setting out the background to the case and explaining the basis for the above criteria being met. If a client loses capacity during formal court proceedings, an order should be made inviting the Official Solicitor to act.

Once the Official Solicitor is satisfied that they can act, the case will be allocated to a case manager within 5 working days (2 working days in public law children cases). The Official Solicitor should then be provided with the following:6

(1) the sealed court order inviting them to act as a litigation friend;

(2) the letter of instruction and capacity assessment which concludes that the protected party lacks litigation capacity;

(3) a full explanation of how the protected party’s legal fees will be met;

(4) confirmation that there is no other person suitable and willing to act as a litigation friend; and

(5) a copy of the court bundle (if there is one).

How to appoint a litigation friend

The issue of litigation capacity can arise at any stage within the solicitor–client relationship. It may be that you are approached from the outset of proceedings by a party (or a prospective litigation friend) and it is apparent that there may be issues about that party’s litigation capacity. On other occasions, a client could lose capacity during the course of the proceedings. In such cases, a party’s solicitor will often be the first person to identify that their client lacks capacity. Where there are concerns as to an individual’s capacity to litigate, no steps can be taken within proceedings (expect for the filing of an application form or applying for the appointment of a litigation friend7) without the court’s permission until a litigation friend has been appointed. At whatever stage this occurs, it is therefore important to take the following steps as quickly as possible:

(1) Medical evidence. Where you have reason to believe that a party may lack litigation capacity, it will be necessary to ensure there is corroborative evidence which either confirms that a party does have litigation capacity or confirms that they do not. If the party is already under the care of a medical professional, it is possible to rely on a letter or report from them. However, where the question of capacity has the potential to be controversial, it may be sensible to instruct a medico-legal expert to conduct a full capacity assessment. There will usually be an additional cost for this report which will need to be met by the party themselves, unless the report has been obtained from a single joint expert (with an order that the costs be shared).

(2) Identify a suitable litigation friend. It may be that someone has already volunteered to be a litigation friend, but before proceeding, it is imperative that they fully understand the role and what is being asked of them. The litigation friend must have no interest in the proceedings adverse to that of the protected party. Consideration should also be given to the proposed litigation friend’s own life and work commitments.

(3) Complete and sign the Certificate of Suitability. Once a litigation friend has been identified, they will need to complete and sign a Certificate of Suitability.8 This is not required if the litigation friend is an appointed deputy. In this case, the deputy must file an official copy of the document which confers their authority to act.

(4) File and serve the Certificate of Suitability and Certificate of Service. The Certificate of Suitability needs to be sent to the court and the other parties. Where the protected party is an adult, it must be sent to anyone who has been appointed as a deputy, attorney under a registered enduring power of attorney, or donee of a lasting power of attorney, and in the absence of any such person, to any adult with whom the protected party resides or in whose care the protected party is.9 A Certificate of Service will need to be completed and filed at court.10

(5) If needed, submit a court application. Whilst not always necessary, for a ‘belt and braces’ approach, you may want to formally apply to the court for a litigation friend to be appointed. The benefit of formally applying is that you then have a court document which confers authority onto the litigation friend, and you can request permission for the medical report to be admitted as evidence at the same time. It will also provide an opportunity for any directions to be re-timetabled. A formal application can be useful in cases where the need for a litigation friend is contested (or not accepted) by the other party. Where a court application is being made, this should be made on Form FP2 and in accordance with Part 18. A supporting statement is required, which should enclose the medical evidence relied upon and the Certificate of Suitability.

Once a litigation friend has been appointed, the protected party shall be referred to on any formal court documents as ‘[Protected Party’s Name] (by their litigation friend)’.

Capacity assessment

If at any point during the solicitor–client relationship, there is a concern that a party lacks capacity, that party’s solicitor must take the lead in any expert instruction for the purpose of a capacity assessment.11 An assessment of a party’s capacity must be dealt with swiftly as no instructions can be taken from that party, and no further steps can be taken in the proceedings, without the permission of the court (except for filing an application form or applying for the appointment of a litigation friend), until an assessment has concluded and, if necessary, a litigation friend is appointed.

The solicitor should consider who is best placed to carry out the assessment. This could be the client’s current treating clinician or an independent expert. Contrary to the usual rules, there is no requirement for the instruction of this kind of evidence to be given on a single joint expert basis.12

In A Local Authority v JB [2021] UKSC 52 the Supreme Court held that there are two questions to consider when assessing capacity. These questions must be considered in the following order:

(1) Whether the person is unable to make a decision for himself in relation to the matter.

If so:

(2) Whether that inability to make the decision is because of an impairment of, or a disturbance in, the functioning of the mind or brain.

These questions, along with ss 2 and 3 MCA 2005, should form the basis of the expert’s assessment.

Any assessment is to be carried out on the basis of the specific proceedings, not the proceedings in general (i.e. the specific assets/facts of the case and decisions the party must make, rather than financial remedy proceedings in general) or in relation to the protected party’s general capacity to make decisions. If following the assessment, the expert considers the protected party does have litigation capacity, they do not need to give grounds as to why this is their view.13 However, if they consider that the individual does not have capacity they must provide grounds for that opinion.

As mentioned above, capacity can fluctuate and can relate to certain aspects of a matter and not another. Ongoing consideration must therefore be given as to whether things have changed on the ground or whether there is a need for an updated assessment or review of capacity.

Key things to look out for

It can sometimes be difficult to notice changes in a client’s behaviour and raising concerns about a client’s litigation capacity can also, of course, be a difficult conversation to have within a solicitor–client relationship. However, in order to ensure a client is receiving the best representation, it is something one must bear in mind.

Set out below are some things to look out for in clients:

• decision paralysis;
• repetitive questions in respect of the court process or more simple legal principles
• underlying diagnoses (anxiety, depression, ADHD);
• change in demeanour/body language;
• general disengagement in the court process;
• a change in understanding about something which they previously seemed to understand;
• forgetfulness/spotty memory;
• a sudden or ongoing state of confusion;

Conclusion

As this article has demonstrated, the issue of litigation capacity in family law proceedings is a complex one. It is an issue which must be taken seriously with the correct procedure being followed. As practitioners will know, family law proceedings are generally difficult for all of our clients. However, for a client who lacks litigation capacity, it is essential that we as their representatives do what we can to protect them, their futures, and their ability to participate within these proceedings. The above is, hopefully, a good starting point when one is approached with this issue in practice.