Capacity to litigate
Capacity to litigate

The following Private Client practice note provides comprehensive and up to date legal information covering:

  • Capacity to litigate
  • The capacity to litigate
  • Legal representation
  • Litigation friend
  • Settlements
  • Limitation
  • Enforcement against a protected person
  • Costs

On the face of it, there would appear to be no specific impediment, if there is no reason to suppose that a person is without capacity, in them litigating. If there is no reason to suppose that a person is without capacity, there is, equally, no impediment to them being sued. Where they are without capacity or a suspicion they may be without capacity there may be a problem and this issue should be at the forefront in any elderly client practice.

The capacity to litigate

A party to litigation who lacks the capacity to conduct the proceedings is a person lacking capacity within the definition of the Mental Capacity Act 2005 (MCA 2005) and, since 1 October 2007, is known as a 'protected party'. Where a claim is made by or on behalf of a protected party or against a protected party, no settlement, compromise or payment and no acceptance of money paid into court is valid, so far as it relates to the claim by, on behalf of or against that person, without the approval of the court. The test is whether the party to the litigation is capable of understanding, with the assistance of his legal advisors and any necessary experts, the issues on which his decision or consent is likely to be necessary in the course of those proceedings. The test is

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