Understanding Capacity To Litigate And The Civil Justice Council's Proposals

When someone goes to court, their ability to understand and participate in their court case is crucial. But what happens if there are doubts about their mental capacity to engage in legal proceedings? This is where the idea of "litigation capacity" comes into play—a vital concept that ensures fairness in in the court process.

What is Litigation Capacity?

Litigation capacity refers to a person's mental ability to make decisions about their case, give instructions to their solicitor, or represent themselves in court. If someone is found to lack this capacity, the courts appoints a "litigation friend" to guide and support them through the legal process. The Civil Procedure Rules (CPR) outlines how litigation friends assist but the rules do not provide a clear process for determining whether someone actually lacks capacity. This gap has led to inconsistent practices, delays and, at times, unfair outcomes.