Bringing a claim in Court against any party can be difficult and stressful, even if you understand the process which is being followed, and the law which relates to your claim. However, there will be circumstances when you or a relative do not have capacity to bring the proceedings without assistance.
When considering capacity in a Court context, we must consider whether you have the ability to participate effectively in legal proceedings. This does not mean being able to be physically present at Court (as online hearings have enabled those who are physically unable to attend to now participate), but will certainly arise if you are unable to understand, follow, or contribute meaningfully to the legal process.
In short, if a Client understands the basics or their legal case, but would struggle with the complexity or nuances then they may lack capacity. Equally, a client may be able to make some decisions, but be overwhelmed by more complex legal issues. If there is a concern on the part of your solicitor that you may lack capacity for these reasons, then a solicitor may not be able to take instructions from you, or proceed on your behalf.
However, there are ways that you can still ensure that a case progresses. The Court has the ability to appoint a Litigation Friend to assist you in relation to the proceedings. The Litigation Friend is appointed to act on your behalf, and can give instructions to your solicitor, attend court, and provide witness statement evidence for you.
In the first instance, we usually look to trusted family members or friends to act as a Litigation Friend. They will often have your interests at the forefront of any decision making, and may also have personal knowledge of the issue at hand, enabling them to provide first hand witness statement evidence. However, if you do not have a family member who can act for you, the Court can appoint a deputy or a professional advocate to act for you in relation to the proceedings.
A decision as to whether or not you have capacity is however only made with direct reference the medical professionals treating you, or following a specific capacity assessment. On some occasions, you may not lack capacity, but may need adjustments, to ensure that the proceedings are easier for you to progress. The Court will make the necessary adjustments to ensure that the process is a simple as possible.
If you wish to discuss any of the above then please get in touch below with our Dispute Resolution Team or contact Lorraine Lancaster on 01702 338338.
