CJC consultation of procedure for determining mental capacity in civil proceedings

On 15 March 2024, Clyde & Co submitted a response to the Consultation by the Civil Justice Council concerning their proposed review of the procedure for determining mental capacity in civil proceedings.

The topic is of interest to those clients who instruct us to defend road traffic, employment and public liability injury claims given those which concern significant brain and psychiatric injuries often involve issues of capacity.

In the overwhelming majority of those cases, the current system generally works well given vulnerable parties are legally represented and any costs not recovered on an interpartes basis indemnified by BTE or ATE insurance.

As such, we say significant reforms are not required.

Having said this, Clyde & Co considers their clients have a legitimate interest in this issue because the appointment of a Deputy and the associated costs form a head of loss which impacts directly on the ultimate award of damages.

Some of the momentum driving the Consultation comes from areas such as housing and probate disputes in which the majority of litigants act in person hence there is not always a legal representative available to address issues of capacity and if necessary, appoint a Deputy or Litigation Friend.

Here, we accept there may be a gap and therefore justification to investigate whether there should be a role for the Court and/or other parties to the case.

Given the very diverse nature of the claims falling under the civil umbrella, there are no easy or one size fits all answer.

All we would say is any solution must not inadvertently contribute to satellite litigation or delay in the resolution of disputes.

On this basis, it may be appropriate to adopt a pilot scheme approach to any changes before they are introduced to allow for account of practical experience to be undertaken in advance of final measures being introduced.

In the meantime, watch this space for further coverage of issues relevant to the market, the context of the initiative and possible effects of any proposed reforms once the Civil Justice Council has analysed the responses received.