Judge: Sir Raymond Jack
Citation:  EWHC 759 (QB)
Summary: This case concerns capacity to litigate. Ms Makar was involved in proceedings in the Senior Court Costs Office, where it was said that she owed over £500,000 in costs to her accountants in connection with earlier litigation in which she had been unsuccessful. During a hearing, she had behaved in such a way as to cause the Costs Officer to consider that she lacked capacity to litigate and required a litigation friend: “She went into the corridor and became very much distressed. She lay rolling on the floor of the corridor screaming. After a little, she calmed down.” The costs judge became concerned that Ms Makar lacked capacity to litigate the proceedings. Ms Makar refused to co-operate in an assessment of her capacity. The costs judge made an order in which he concluded that Ms Makar lacked capacity to litigate the proceedings, and stayed the proceedings pending appointment of a litigation friend. Baker Tilly appealed, and agreed to indemnify the Official Solicitor so that he could act as litigation friend to Ms Makar at the appeal.
The court held that the costs judge had not been entitled to conclude that Ms Makar lacked capacity to litigate on the basis of the incident in which she had suffered what appeared to the costs judge to be an emotional breakdown. It was relevant that Ms Makar had been litigating other proceedings with no question of her capacity having been raised, and one incident the costs judge had been concerned by was insufficient to demonstrate that Ms Makar had a disturbance of the functioning of her mind, as required by s2(1) MCA 2005.
In reaching that conclusion, the court held that the principles in s.1 of the MCA 2005 applied to the provisions in part 21 of the CPR regarding the appointment of litigation friends, in particular the assumption in favour of capacity. The court also observed that:
The absence of medical evidence cannot be a bar to a finding of lack of capacity but where most unusually circumstances arise in which medical evidence cannot be obtained, the court should be most cautious before concluding that the probability is that there is a disturbance of the mind. The Master recognised that. Such a finding is a serious step for both parties. It takes away the protected party’s right to conduct their litigation. It may constitute, and here would constitute, a serious disadvantage to the other party.
Comment: This case illustrates the difficulties that courts face when individuals whose capacity is under question refuse to undergo medical assessments. There is no power to order the individual to comply with an assessment of capacity, and in some cases, judges will have to form a view as to capacity without the benefit of any external expertise. If that happens, great care must be taken in ensuring that there is adequate evidence of mental impairment or disturbance, and the principles enshrined in the MCA must be carefully applied.