Factual and Procedural Background
This opinion concerns a second appeal against the order of a Deputy District Judge dated 15 December 2021, which was dismissed by a circuit judge on 8 February 2023. The appellant, referred to as the Appellant, challenged the dismissal of his claims against a public body, referred to as the Respondent, for alleged discrimination under the Equality Act 2010. The central issue initially was whether the Appellant lacked capacity to conduct proceedings at the relevant time. The proceedings arose from complaints the Appellant made to the Respondent about a financial institution, and subsequent claims that the Respondent failed to make reasonable adjustments for his disabilities in breach of the Equality Act.
The Appellant, who has a longstanding history of depression and mental health issues, initiated claims alleging discrimination and harassment related to failures by the Respondent and an individual solicitor employed by it. The Respondent applied to strike out the claims or for summary judgment, asserting statutory immunity and exemptions related to its judicial functions. The Deputy District Judge struck out the claims, finding statutory immunity applied, the claims were incoherent, and the Respondent was exercising a judicial function. The Appellant appealed, but permission to amend grounds was refused, and the appeal was dismissed with costs ordered against him.
Subsequently, the Appellant sought to rely on a medical assessment asserting lack of capacity to conduct proceedings, claiming he should have had a litigation friend. The Court of Appeal granted permission to rely on this assessment and to appeal on this ground, adjourning other grounds for the full hearing. The Respondent opposed the appeal and argued that the Appellant had not established lack of capacity.
Legal Issues Presented
- Whether the order of the Deputy District Judge should be set aside on the basis that the Appellant lacked capacity to conduct proceedings at the material time and was therefore a protected party requiring a litigation friend.
- Whether statutory immunity and exemptions under the Financial Services and Markets Act 2000 and the Equality Act 2010 apply to the Respondent in relation to the Appellant's claims.
- Whether the failure to provide reasonable adjustments during the hearing before the Deputy District Judge constituted a serious procedural irregularity affecting the fairness of the proceedings.
- Whether permission to amend grounds of appeal should have been granted to allow the Appellant to provide further particulars.
Arguments of the Parties
Appellant's Arguments
- The Appellant argued he lacked capacity to conduct proceedings and should have been treated as a protected party requiring a litigation friend under CPR rule 21.
- He contended the Respondent failed to comply with its duty under the Equality Act 2010 to make reasonable adjustments to accommodate his mental health disabilities.
- The hearing before the Deputy District Judge was unfair due to failure to make reasonable adjustments, including the absence of a ground rules hearing or case management discussion.
- The statutory immunity claimed by the Respondent did not cover failures to provide reasonable adjustments in accessing services, only functions related to the compulsory jurisdiction.
- The Deputy District Judge erred in striking out the claims without allowing the Appellant to provide further particulars or amendments.
Respondent's Arguments
- The Respondent asserted statutory immunity under schedule 17 paragraph 10 of the Financial Services and Markets Act 2000, protecting it from damages claims in relation to its compulsory jurisdiction.
- It claimed exemption from the Equality Act duties on the basis that it was exercising a judicial function or equivalent.
- The claims were incoherent, lacked proper particulars, and were without merit.
- The claim against the individual solicitor was an abuse of process.
- In opposition to the capacity ground, the Respondent argued the Appellant had not established lack of capacity on the balance of probabilities.
- The Respondent requested the Court to exercise its discretion under CPR 21.3(4) to avoid retrospectively invalidating all procedural steps taken in good faith, given the Appellant’s legal representation at material times and public interest considerations.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Dunhill v Burgin [2014] 1 WLR 943 |
Steps taken by a protected party without a litigation friend are nullities and retrospectively invalidated. |
Referenced to support the argument that if the Appellant lacked capacity, all orders made without a litigation friend would be null and require setting aside. |
| MTA v Lord Chancellor [2024] EWCA Civ 965 |
Confirms that steps taken by a protected party without a litigation friend have no effect unless the court orders otherwise. |
Used to justify granting permission to rely on new evidence regarding capacity and to hear the appeal on that ground. |
| A Local Authority v JB [2021] UKSC 52 |
Sets out the correct approach to assessing capacity: decision-specific, identifying relevant information and causative nexus with impairment of mind or brain. |
Applied to assess the Appellant’s capacity to conduct proceedings, focusing on statutory principles and expert evidence. |
| A Local Authority v P [2018] EWCOP 10 |
Capacity is issue- and time-specific; assessment must consider all relevant evidence including expert opinion. |
Guided the Court in evaluating the medical evidence and the temporal scope of the Appellant’s capacity. |
| CC v KK [2012] EWHC 2136 (COP) |
Cautions against the "protection imperative" that may bias assessments of capacity towards protective outcomes. |
Emphasized the need for objective and detached assessment of capacity in this case. |
| Masterman-Lister v Brutton and Co [2002] EWCA Civ 1889 |
Test for capacity to conduct proceedings: ability to understand issues with assistance as necessary. |
Referenced to frame the legal test for capacity under CPR rule 21. |
| V v R [2011] EWHC 822 (QB) |
Application of MCA 2005 principles to capacity to conduct litigation, presumption of capacity, and requirement for careful enquiry. |
Used to compare the Appellant’s evidence and to emphasize the presumption of capacity. |
| Public Guardian v RI and Others [2022] EWCOP 22 |
Evidence required for disputes about past capacity including contemporaneous medical and other evidence. |
Guided the Court’s assessment of the sufficiency and quality of the medical evidence presented. |
| Cannon v Bar Standards Board [2023] EWCA Civ 278 |
Distinction between capacity and fairness; importance of thorough expert evidence addressing relevant capacity factors. |
Applied to critique the deficiencies in the Appellant’s expert evidence and to distinguish capacity from procedural fairness. |
| Galo v Bombardier Aerospace UK [2016] NICA 25 |
Obligation on courts to ensure reasonable adjustments for disabled litigants to enable full participation. |
Referenced regarding the duty of the court to consider reasonable adjustments and the possible procedural irregularity arising from failure to do so. |
Court's Reasoning and Analysis
The Court undertook a detailed examination of the statutory framework governing capacity under the Mental Capacity Act 2005 and the Civil Procedure Rules, as well as relevant case law setting out the principles for assessing capacity. It emphasized that capacity is decision- and time-specific, with a presumption in favour of capacity unless rebutted on the balance of probabilities.
In assessing the Appellant’s evidence, the Court noted significant deficiencies in the expert report and certificate relied upon to establish lack of capacity. The certificate failed to specify the proceedings to which it related and did not sufficiently explain how the Appellant’s diagnosed conditions impaired his ability to understand, retain, and weigh information. The report was based on incomplete medical records and lacked a comprehensive analysis of the Appellant’s capacity over the relevant period.
The Court preferred the subsequent independent expert opinion, which concluded that the Appellant had capacity to conduct proceedings, albeit requiring reasonable adjustments. The Court found that the presumption of capacity had not been displaced and that the Appellant was not a protected party under CPR rule 21.
Regarding the statutory immunity claimed by the Respondent, the Court noted that the Appellant had abandoned this ground at the first appeal hearing and that it was linked to the capacity issue. Since the presumption of capacity was not rebutted, there was no reason to depart from the usual rule precluding raising new grounds on a second appeal.
On the procedural fairness issue, the Court acknowledged the Appellant’s requests for reasonable adjustments before the hearing but found no evidence the Deputy District Judge was aware of these requests. Although the failure to hold a ground rules hearing or make reasonable adjustments could amount to a procedural irregularity, the Appellant had legal representation at the subsequent appeal hearing and had not produced particulars of claim. Therefore, the Court found no real prospect that the appeal would succeed on this ground.
Finally, the Court addressed a procedural point regarding the interpretation of CPR 21.3, concluding that the rule’s protections are primarily designed for defendants lacking capacity and do not permit a person lacking capacity to validly commence proceedings on their own behalf, reinforcing the need for a litigation friend.
Holding and Implications
The Court DISMISSED the appeal on the ground that the Appellant had failed to prove lack of capacity to conduct proceedings at any material time. The Appellant was therefore not a protected party requiring a litigation friend under CPR rule 21. The Court refused permission to appeal on the other grounds, finding no real prospect of success or compelling reason to depart from the usual rules.
The direct effect of this decision is to uphold the Deputy District Judge’s order striking out the Appellant’s claims and ordering costs against him. No new precedent was established. The judgment reinforces the importance of clear, comprehensive expert evidence to rebut the presumption of capacity and confirms that failure to have a litigation friend when required renders procedural steps null unless the court orders otherwise. It also underscores the court’s duty to consider reasonable adjustments for disabled litigants but recognizes that procedural irregularities must have a real prospect of affecting the outcome to justify appeal.