CS v FB
In this case, Mostyn J was confronted by what to do where it appeared that one of the parties to proceedings between parents concerning a child lacked capacity to conduct those proceedings. The Official Solicitor had been contacted, and in light of the matters put to her office noted that the court might wish to direct that the capacity of the party – the mother – to conduct the proceedings be assessed by an independent psychiatrist. However, the Official Solicitor's letter continued:
there is the question of how this assessment can be funded. Whilst I understand that FB should be financially eligible for legal aid, FB is not willing to instruct a solicitor, and so an application for legal aid cannot be made at this time. So, this does not provide a route for funding the assessment. I have asked the local authority if it is able to provide funding, but it has said that this is not possible. The assessment is for the purpose of these proceedings and they are not a party to them. The Official Solicitor is not in a position to meet the capacity assessment. I do not know if it is possible for the assessment to be funded by the applicant's legal aid. I have raised this with Dawson Cornwall, who represent the father, and they were going to look into whether this was possible. I hope that Dawson Cornwall will be able to inform the court of the outcome of their enquiries. If funding can be secured by this route or if another means of funding is identified the Official Solicitor is willing to assist by identifying an expert, drafting the letter of instruction, and liaising with the local authority about arranging for FB to meet with the expert.
Possible further steps: should the experts assess FB as lacking capacity to conduct the proceedings and the court determines that FB is a protected party, the Official Solicitor would propose instructing Brethertons to apply for legal aid to be able to represent FB, and if legal aid is granted the Official Solicitor should be in a position to consent to act as FB's litigation friend'.
Dawson Cornwall representing the father made the enquiries suggested by the Official Solicitor. The answer from the Legal Aid Agency was "a flat categorical no." As Mostyn J identified:
- […] The court is, therefore, left in a curious Catch-22 situation. It is suggested that the court cannot determine that the mother lacks capacity to conduct these proceedings unless there has been expert evidence to that effect. However, that expert evidence cannot be funded until she has been declared to lack capacity. One can, therefore, see that the argument is entirely circular.
- Therefore, to declare on a final basis that a party does not have capacity to conduct the proceedings is unquestionably a very serious matter, intruding into the freedom of a person to conduct litigation in the manner in which they think fit. It is for this reason that the threshold of incapacity is set relatively high.
- In the case of Baker Tilly v Makar  EWHC 759 (QB) Sir Raymond Jack emphasised how momentous it was a for a court, without the benefit of expert evidence, to make a final determination of incapacity.
this court should on the available evidence make an interim declaration of lack of capacity thereby enabling for the Official Solicitor to be appointed as the mother's litigation friend and legal aid secured. Once that has happened it would then be possible and appropriate for the Official Solicitor, with the benefit of legal aid, to investigate for final determination the mother's capacity to conduct these proceedings. Under FPR 20.2(1)(b) the court has power to make an interim declaration; and, indeed, under its general powers the High Court has power to make final declarations, but that latter power is not necessary in this case at the present time.
Mostyn J gave a 'clear yes' to the question whether an interim declaration was justified on the evidence before him, and did so.
The solution adopted by Mostyn J is a pragmatic one, equally applicable in proceedings before the Court of Protection, the COPR giving the court the power to make an interim declaration (r.10.10(b)), and proceedings under the CPR, which also gives the court the power to make interim declarations (CPR r.25.1(b). In the context of proceedings before the Court of Protection the issue is likely to arise not in relation to P, but rather another party: in relation to P, the structure of the Rules is such that P can only be joined as a party if they either (1) have capacity to conduct the proceedings; or (2) an accredited legal representative or litigation friend is in place (see COPR 2017, r.1.2(4)).