I was speaking at the MASS conference yesterday about capacity and litigation. It is always the way of things that an interesting point on an issue comes up the day after a presentation.  An issue on capacity to litigate arose in the Court of Appeal judgment today in Fletcher v Keatley [2017] EWCA Civ 1540.  The basic point being that if a claimant does not have capacity at the outset of the case the litigation friend continues to have authority until removed by court order.


The defendant was appealing awards of damage made by the trial judge. That appeal was disallowed.  The other ground of appeal went to capacity. That argument also failed.


[I think there is an error of transcription here. The reference to CPR 29.9(2) is to a rule that doesn’t exist. It is certainly meant to be a reference to CPR 21.9(2).]

  1. The remaining grounds of appeal (grounds 8 to 11) went to the issue of the respondent’s capacity to litigate. It was pointed out that the judge found that the respondent had lacked capacity to conduct his own litigation “for a period”, but he had not identified which period. It was said (in the skeleton argument, paragraph 70) that there was no basis, therefore, for the judge to have held that the respondent lacked such capacity after his deliberate behaviour started to manifest itself in about May 2009. Thus, in view of the respondent’s lack of participation in the proceedings, it necessarily followed that the proceedings had been brought without his authority and should be struck out.
  2. In presenting the appeal, however, Mr Edwards modified his position and accepted that once a litigation friend has been appointed, when the protected party regains or acquires capacity, the litigation friend’s appointment continues until it is ended by court order: CPR 29.9(2). Accordingly, he submitted very fairly, if the court inferred that the period in which the respondent lacked capacity encompassed the date of the issue of the proceedings through the litigation friend (on 15 September 2010), then the proceedings would have been brought with proper authority and these grounds of appeal would fall away.
  3. Mr Crilley took us to the only opinion on mental capacity that was available at the time of the issue of proceedings. This was from Professor Young (dated 13 August 2010). In that report, as already noted above (paragraph 13) the Professor said that, in her opinion, the respondent was likely to be a protected party within the meaning of the Mental Health Act. A similar view was expressed by Dr Warburg in his report of 3 January 2011. It seems to me that, in the light of those two opinions spanning the date of issue of proceedings, it must be properly inferred on the evidence that the respondent did not have capacity on the date of issue of the proceedings. Accordingly, these grounds of appeal must also fail.”

CPR 21.9(2)

“(2) Where a protected party regains or acquires capacity to conduct the proceedings, the litigation friend’s appointment continues until it is ended by court order.”