The position of Donor & Deputy in relation to Litigation – D v R [2010] EWHC 2405 (CoP)

 In Wills

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Capacity to Litigate

Capacity to Litigate

The very sad case of D v R [2010] EWHC 2405 gave the opportunity for Mr Justice Henderson to provide a helpful analysis of the capacity to litigate. The relevant statutory and procedural matters for the basis of this article.

The scope of Part 21 Civil Procedure Rules 1998 makes special provisions for children and protected parties.

Amendments to the Civil Procedure Rules came into force on 1st October 2007 and arose out of the bringing into force of the Mental Capacity Act 2005, also on 1st October 2007. As a result the following definitions apply:

  • “child” means a person under 18
  • “protected party” means a party, or an intended party, who lacks capacity to conduct the proceedings
  • “protected beneficiary” means a protected party who lacks capacity to manage and control any money recovered by him or on his behalf or for his benefit in the proceedings
  • “lacks capacity” means lacks capacity within the meaning of the Mental Capacity Act 2005:


S 2 (1) “A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”

  • Be it a temporary or permanent impairment
  • Unfair assumptions should not be made in relation to a condition or aspect of his behaviour

A decision relating to whether a person lacks capacity shall be decided on the balance of probabilities

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The principles to be applied are set out in S1:

  • A person must be assumed to have capacity unless it is established that he lacks capacity
  • A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success
  • A person is not to be treated as unable to make a decision merely because he makes an unwise decision
  • An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests
  • Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action

S 3 Inability to make decisions

(1) For the purposes of section 2 a person is unable to make a decision for himself if he is unable –

a. To understand the information relevant to the decision

b. To retain that information

c. To use or weigh that information as part of the process of making the decision, or

d. To communicate his decision (whether by talking, using sign language or any other means).

(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision

(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of –

a. Deciding one way or another, or

b. Failing to make the decision

S 4 Best interests

This section sets out a process of structured decision-making which must be employed on behalf of a person who is unable to make a decision for himself. It includes:

  • Consideration of whether it is likely that the person will at some time have capacity in relation to the matter in question, and if it appears likely that he will, when that is likely to be (3 a and b)

As far as is reasonably practicable the person making the determination as to capacity

  • must permit and encourage the person to participate, as fully as possible in any act done for him and any decision affecting him
  • must consider the person’s past and present wishes and feelings, the beliefs and values that would be likely to influence his decision if he had capacity and the other factors that he would be likely to consider if he were able to do so.
  • must take into account the views of anyone engaged in caring for them, any done of a lasting power of attorney and any deputy appointed by the court


“An assessment of a person’s capacity must be based on their ability to make a specific decision at the time it needs to be made, and not their ability to make decisions in general”

Mr Justice Henderson was concerned that the decision to discontinue or otherwise cannot be taken without a basic understanding of the nature of the claim, of the legal issues involved and of the circumstances which have given rise to the claim.

The donor is to decide whether or not to pursue a claim he needs to understand, at least in general terms, the nature of the vitiating factor upon which he may be able to rely, and to weigh up the arguments for and against pursuing the claim. In order to do that he has to be equipped with the information, understand it and take it into account when reaching his decision. Thereafter, it matters not if his decision is unwise. But if he can’t assimilate, retain and evaluate the relevant information, he lacks the capacity to make the decision, however clearly he may articulate it.

He went on to say that the need for an understanding of the nature of the claim is particularly pronounced where, as here, it is founded on a rebuttable presumption of undue influence and where the relationship which arguably gave rise to the claim is still in existence.

So, as a minimum, Mr S must be able to understand the nature and extent of the relationship of trust and confidence which he arguably reposed in Mrs D, the extent to which it may be said that his gifts to her cannot readily be accounted for by ordinary motives, and the general nature of the evidential burden resting on her to rebut any presumption of undue influence which might have arisen.

The judge agreed with Professor Beaumont’s assessment that Mr S “has only an incomplete, partially incorrect, and limited understanding of the nature of the current proceedings”. It was apparent that without prompting he had no idea of the size of the gifts he made to Mrs D – he would often hazard a guess at it being a few hundred pounds, swiftly moving up to thousands and indeed hundreds of thousands without any apparent concern. This was a recurrent feature in his interviews with all three experts.

Mr S had very little understanding of the amounts of money at stake and couldn’t explain other than very simply why he might have wished to give so much money away and in particular to Mrs D. On balance and after analysing very carefully the expert evidence the judge was satisfied that the clear and firm evidence of both Prof Beaumont and Dr Barker was that Mr S could not use or weigh the information, even if he could understand it.

Mr Justice Henderson concluded by saying that it was not a decision he reached with any pleasure particularly because the philosophy of the MCA 2005 is that people should, as far as possible, be able to make decisions for themselves, and he recognised that the decision will bring nothing but unhappiness to Mr S, at least in the short term. He hoped that a settlement could be reached in relation to the Chancery proceedings for the benefit of all.

So, the overarching principle is that any decision made on behalf of a litigant lacking capacity must be made in his best interests.

However, this is not necessarily the same as enquiring what he would have decided if he did not lack capacity.

The explanatory notes to the Mental Capacity Bill explained:

“Best interests is not a test of “substituted judgment” (what the person would have wanted) but rather it requires a determination to be made by applying an objective test as to what would be in the person’s best interests”.

The freedom to make what others might consider to be an unwise or eccentric decision remains – that of itself does not indicate a lack of capacity but clearly when considered in the light of other factors it may be of relevance. In particular when there is a marked contrast between the unwise nature of the impugned decision and the person’s former attitude to the conduct of his affairs at a time when his capacity was not in question.

It is important to note that the test of capacity is both issue and time-specific.


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