When considering bringing a claim there are a number of questions that must be answered, not least whether the defendant is capable of complying with the remedy that is being sought.
However, particular consideration should be given where there is evidence on the facts that the defendant may be a “person under a disability” due to mental health issues. If that is the case then the court may refuse to issue a judgment or a warrant until further enquiries are made by the claimants in this regard.
Under the Civil Procedure Rules paragraph 21.2 provides that a [protected person] must have a litigation friend to conduct proceedings on their behalf. Unless the court orders otherwise, any step taken in proceedings against the protected person who does not have a litigation friend will have no effect, (CPR 21.3(2)).
It is also worth noting that solicitors are under a general duty not to take unfair advantage of third parties in their professional or personal capacity. Clearly, this means that if there are doubts with regards to the defendant then investigations must be made.
In the first instance concerns should be raised with the defendant or their solicitors, if instructed. The defendant may agree to be assessed under the Mental Capacity Act 2005 and appoint a litigation friend, if appropriate.
The test for the capacity to conduct litigation is that the person must be capable of understanding information relevant to the litigation, retaining that information, evaluating the information and communicating a decision (Masterman-Lister v Brutton & Co (2003) 3 ALL ER 162). The test for disability because of a mental disorder or mental incapacity is issue specific and depends on the surrounding circumstances of the particular claimant involved.
If the defendant refuses assessment and there is still concern about their capacity to conduct the defence, it may be appropriate to apply to court for directions in this respect. If this issue is not properly explored and resolved then there is a risk that the proceedings will have no effect. This may lead to wasted time and cost.
In short, if there is any suggestion that the defendant is not capable, as mentioned above, consideration should immediately be given to appropriate steps to be taken to ensure the defendant is property represented and that the on-going litigation is effective.