Judge: Norris J
Citation:  EWHC 4409 (Ch)
Summary: We note briefly this complicated civil case arising – ultimately – out of unsuccessful litigation brought by as Ms Madden because of the approach adopted by Norris J to the question of the determination of whether or not Ms Madden had capacity to conduct the two proceedings with which he was immediately concerned. It is of note for the following reasons:
Norris J found that from “the terms in which the evidence is couched that there may be confusion between Ms Madden’s capacity and her ability, personally, to conduct litigation. It seems to be that it may well be the case that she is legally capable of making the relevant decisions but apprehensive about appearing in court, an experience that she would find stressful” (paragraph 20). Reviewing the evidence of her treating practitioner and her GP (who had signed her off work and indicated that she would find attendance at court and participation in legal proceeding stressful), Norris J considered that he could not be confident that either had addressed the requirements of ss.2-3 MCA 2005 rather than “simply assessing what impact attendance at court and participation in court proceedings might have on Ms Madden’s health.” He therefore held that the material adduced in evidence did not raise such an issue of capacity as to cause the adjournment of the proceedings before him.
This case sits together with that of Baker Tilly v Makar as a reminder of the need for caution before a court takes the significant and draconian step of declaring that a party to proceedings before them lacks the capacity to conduct that litigation.
We would, perhaps, note that the procedure adopted in Lindsay v Wood is a very unusual one (that case involved a situation where the claimant’s representatives had doubts upon his litigation capacity which they put to the Court, but did not argue a positive case one way or another as to whether he had litigation capacity). Indeed, on the facts of the case as set down by Norris J, it is not at all clear that the procedure would have applied to the circumstances of Ms Madden. In any event, it should also be borne in mind that the Official Solicitor has limited resources, and funding for his involvement in any such procedure would always have to be considered carefully.