Commentary

The task for the expert in this case was enormous. Capacity is issue specific. This means that if the issue is someone’s capacity to conduct legal proceedings, in this case sixteen sets of proceedings, the expert has to consider each set of proceedings. The person may have the capacity to conduct some and not others.

Learning points:

• In civil proceedings an expert’s report must comply with CPR rule 35.10 (‘Contents of report’) and Practice Direction 35.

• If there is no letter of instruction, it is necessary to state the substance of all oral material instructions.

• A comprehensive review of the records is required, not just of some of the relevant medical records.

• The question of capacity to conduct proceedings depends in part on the proceedings involved.

• Whether or not a litigant is able to understand, retain, and use or weigh the information relevant to the decision may vary depending on the decision.

• Identify which of the various cases is covered by the certificate.

• Explain how the person’s mental disorders affect his capacity to (a) understand, (b) retain, and (c) use or weigh the information so as to leave him unable to make decisions and conduct the proceedings.

• A bald assertion in the certificate that the person has been unable to conduct litigation for fifteen years has to be supported by an analysis or explanation.

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