Patients, Litigation and CPR Part 21

CPR Part 21 provides the procedural mechanism by which a litigation friend can be appointed by court order in appropriate cases.   Those cases are proceedings involving children or patients.  For the purposes of CPR Part 21:

“Patient” means a person who by reason of mental disorder within the meaning of the Mental Health Act 1983 is incapable of managing and administering his property and affairs.(CPR 21.1(2)(b)). 

Such a person must have a litigation friend to conduct proceedings on his behalf.   The appointment of a litigation friend in practice invariably presages the involvement of the Court of Protection and the inclusion in the claim of a head of loss relating to the costs of the Court of Protection.   Hence the Defendant’s potential interest in this issue.

Who is a patient for the purposes of CPR Part 21?   The decision of the Court of Appeal, affirming Wright J, in Masterman-Lister v. Brutton & Co (Nos. 1 and 2) [2003] 1 WLR 1511 was a landmark decision in this area.  The decision established the fundamental principle that capacity was to be judged in terms of the ability to understand  advice that was given and not upon a propensity to make prudent or foolish decisions.The court was concerned with the quality of the decision making and not the wisdom of a decision.   It also established that the ability to understand had to be judged in the light of the particular transaction which was in question.Where the transaction is litigation and the context of the litigation is a claim for personal injuries of a substantial amount,the capacity in question is the capacity to make decisions likely to be necessary in the course of the litigation.This would include decisions as to whether or not to settle but not the decisions which would have to be made about the administration of an award of damages.  

The Court of Appeal has now returned to this area in two recent decisions, Bailey v. Warren [2006] EWCA Civ 51 (07.02.06) and Folks v Faizey [2006] EWCA Civ 381 (06.04.06).  

In Bailey a question that arose was whether the capacity to understand should be assessed in relation to the individual issue that was in question  in the litigation or whether it had to be judged in the context of the litigation as a whole.  In that case the Claimant had compromised the issue of liability alone in relation to a claim arising out of a road traffic accident and sought to reopen that compromise on the basis that he should have been considered to be a patient at that time.   The Court of Appeal held by a majority that the test related to the capacity to understand the litigation as a whole and should not be judged by reference to the particular  issue that was in question .Ward LJ expressing the majority view on this question  said, at para 78:  

“If, as it seems to me, the relevant capacity is capacity to conduct proceedings, then the client must be able to understand all aspects of those proceedings and take an informed decision, with the help of such explanation as he is given, which bears upon them.   It cannot be judged piecemeal.  If he has the ability to understand what is meant by a 50/50 split of liability but lacks the capacity to understand the concept of damages which results from that division of liability, then he lacks true capacity to conduct the proceedings”.

In Folks v Faizey the Defendant opposed an application under CPR Part 21 for the appointment of a litigation friend.  The grounds of opposition were that although the neuropsychiatrists were agreed that the Claimant was incapable of managing his affairs within the meaning of the Mental Health Act 1983, the Claimant nonetheless had the capacity to litigate in the sense that he understood the issues in the litigation.   The Court of Appeal was plainly anxious to put a stop to disputes of this kind.   Pill LJ, referring to Masterman-Lister, said,at para 18:

“I am very confident that Kennedy LJ was not seeking to promote or encourage routine satellite litigation to determine the issue of capacity.”

He considered that the Respondent’s advisers had “sought to interfere in a procedure with which they were only minimally concerned”.   Provided that any application was made in good faith by a solicitor mindful of his responsibilities and was supported by appropriate evidence including medical evidence, an order under Part 21 should normally be made without further enquiry.  If the Defendant wished to raise an issue in relation to capacity because it affected the question of Court of Protection costs, the appropriate time at which to do that was not at the time of the Part 21 application.Presumably it was to be left to the  time at which damages were assessed .

06 10 06                                                                                     WILLIAM HOSKINS