How not to talk about capacity and mental illness

George Major (a protected party, by his litigation friend Katherine Gee) v Kalaivani Jaipal Kirishana [2023] EWHC 1593 (KB) per Justice Cotter

A recent High Court appeal - concerning an application made by a litigation friend to be discharged from her position - contains some useful observations on inappropriate submissions and language used by lawyers in cases raising issues of mental illness and capacity.

Background

The underlying proceedings concerned a claim for breach of contract. The defendant, Mr Major, had been diagnosed with bipolar affective disorder and generalised anxiety disorder. Early on in the proceedings, the issue of Mr Major's capacity to litigate was raised. A medical report was obtained, which concluded that Mr Major lacked capacity to litigate. Ms Cowell (who later married and became Mrs Gee) agreed to be and was appointed Mr Major's litigation friend.

The claimant's solicitor's interactions with Ms Cowell left much to be desired. They were aggressive in tone, threatened to seek personal costs against Ms Cowell, and did not adequately take into account that she was not a lawyer.

Ms Cowell experienced significant anxiety and stress, and was signed off work as a result. She applied to terminate her appointment as litigation friend, explaining that she did not feel able to continue in the role given her own mental health problems. She provided witness statements and medical evidence in support of her application.

The application came before HHJ Luba KC on 4 June 2021, who refused to discharge Ms Cowell as litigation friend and ordered she pay the costs of the application. The Defendant appealed from this remarkable case management decision, and the appeal was successful.

While the case is illuminating as to the correct approach a court should take when considering whether to discharge a litigation friend, Justice Cotter also made important observations throughout his judgment about inappropriate comments the claimant's legal representatives had made concerning issues of capacity and mental illness.

How not to talk about capacity and mental illness

As to capacity, Justice Cotter made the following observation at para 22:

"Given some references in the subsequent statements/skeleton arguments on behalf of the Respondent is is important to understand its [sic] implications of the finding that Mr Major lacked the capacity to litigate. Capacity must be considered as at any given time/stage in [sic] within the litigation on all the available evidence. It is a binary issue. Capacity can be lost and gained, but if a person lacks capacity the proceedings should not continue. If they do so any step take [sic] may be of no effect. Whilst this may be frustrating for an opposing party and prevent the progress of the litigation that is of no weight at all in the assessment of capacity. Also the extent to which there is a person willing to act as a litigation friend is irrelevant when considering the question of capacity."

Justice Cotter then went on to criticise the claimant's representatives for making submissions casting doubt on whether Mr Major lacked capacity, and suggesting that the issue of capacity was being used as a delay tactic. 

In particular, Justice Cotter said it was inappropriate for the claimant's representative to have bemoaned "the amount of court and judicial time that has already been expelled on Mr Major et all messing about with this issue" or to say that the defendant was "purporting to lack capacity." The court had determined Mr Major lacked capacity, on the basis of medical evidence. Once that assessment had been made, it remained valid until varied or set aside. There was no justification for suggesting the defendant was "purporting to lack capacity" or that the defendant or Ms Cowell was "messing about" with the issue of capacity (see paras 55-56, 74-75).

The claimant's representatives also came in for criticism in relation to their language concerning Ms Cowell's mental health issues. The claimant's solicitor had in a witness statement said that Ms Cowell had been able to prepare her application to be discharged and prepare witness statements "despite claiming to suffer from anxiety". The skeleton argument of claimant's counsel suggested it was "fanciful" she was not mentally well enough to continue as litigation friend, and characterised Ms Cowell as having "changing whims".

Justice Cotter said that these comments should not have been made (para 134). He criticised the claimant's representatives for questioning the veracity of Ms Cowell's evidence as to her mental health issues, "despite the lack of any basis for doing so" (para 47). He also observed that the comments appeared to show "a degree of ignorance as to anxiety conditions generally" (para 47) and "left something to be desired in terms of recognising the impact of mental health conditions" (para 54). 

Comment

These are welcome observations from Justice Cotter. 

Unfortunately, in my experience, it is not uncommon in cases where I have had to raise the issue of my client's capacity to find the other party suggesting this is a delay tactic, as opposed to a matter of ethical obligation. 

If a solicitor or barrister has grounds for genuine concern about their client's capacity, they must ensure these are resolved before taking any further instructions from their client. As observed by Kennedy LJ in Masterman-Lister v Brutton [2002] EWCA Civ 1889 at para 17: 

"[C]ourts should always, as a matter of practice, at the first convenient opportunity investigate the question of capacity whenever there is any reason to suspect that it may be absent". 

If there are capacity concerns, the issue must be aired and determined. As is made clear by Justice Cotter, whilst that may be frustrating for an opposing party and prevent the progress of the litigation, that is beside the point.

So too, Justice Cotter's remarks addressing mental illness are welcome. Mental illness remains stigmatised, downplayed, and misunderstood. Justice Cotter rightly recognises that it is not appropriate for legal representatives to challenge the veracity of evidence concerning a person's mental illness, if there is no basis for this, aside from their own inexpert assumptions.

I hope that Justice Cotter's public criticism of those involved in these proceedings strikes a cautionary note and helps to improve the practice of solicitors and barristers in dealing with these sensitive issues.