Durkan v Madden  EWHC 4409 (Ch) (Norris J)
Practice and procedure – Other
Summary and comment
We note briefly this complicated civil case arising – ultimately – out of unsuccessful litigation brought by as Ms Madden because of then approach adopted by Norris J to the question of the determination of whether or not Ms Madden had capacity to conduct the two proceedings with which he was immediately concerned. It is ofnote for the following reasons:
- As was emphasised in Baker Tilly v Makar  EWHC 759 (QB), Norris J reminded himself that treating a person as lacking capacity is an important interference with their civil rights and ought only to be done after proper consideration;
- Adopting the issue-specific test, Norris J proceeded on the basis that it was necessary to identify specifically whether Ms Madden had capacity to conduct those proceedings, as opposed to bankruptcy proceedings which were at that stage on foot before the Court of Appeal in which, it appeared, she had been held to lack litigation capacity and was represented by the Official Solicitor as litigation friend;
- Norris J noted that it would be open to him to invite the Official Solicitor to consider the evidence, to appoint an expert and then to hold a hearing to determine capacity. In so saying, he relied upon the case of Lindsay v Wood  EWHC 2895, although it is perhaps to be noted that Stanley Burnton J in that case suggested that this was a course open to the court; he did not, in fact (as Norris J appears to have considered) order such a course himself. Norris J, reminding himself of the need not to generate satellite litigation but to proceed in “a pragmatic way, asking as to the consequences that will flow from continuing with the litigation without the appointment of a litigation friend or of the Official Solicitor,” sought to find a way to avoid taking the Lindsay v Wood course; asking as to the consequences that will flow from continuing with the litigation without the appointment of a litigation friend or of the Official Solicitor,” sought to find a way to avoid taking the Lindsay v Wood course;
Norris J found that from “the terms in which the evidence is couched that there may be confusion between Ms Madden’s capacity and her ability, personally, to conduct litigation. It seems to be that it may well be the case that she is legally capable of making the relevant decisions but apprehensive about appearing in court, an experience that she would find stressful” (paragraph 20). Reviewing the evidence of her treating practitioner and her GP (who had signed her off work and indicated that she would find attendance at court and participation in legal proceeding stressful), Norris J considered that he could not be confident that either had addressed the requirements of ss.2-3 MCA 2005 rather than “simply assessing what impact attendance at court and participation in court proceedings might have on Ms Madden’s health.” He therefore held that the material adduced in evidence did not raise such an issue of capacity as to cause the adjournment of the proceedings before him.
This case sits together with that of Baker Tilly v Makar as a reminder of the need for caution before a court takes the significant and draconian step of declaring that a party to proceedings before them lacks the capacity to conduct that litigation.
We would, perhaps, note that the procedure adopted in Lindsay v Wood is a very unusual one (that case involved a situation where the claimant’s representatives had doubts upon his litigation capacity which they put to the Court, but did not argue a positive case one way or another as to whether he had litigation capacity). Indeed, on the facts of the case as set down by Norris J, it is not at all clear that the procedure would have applied to the circumstances of Ms Madden. In any event, it should also be borne in mind that the Official Solicitor has limited resources, and funding for his involvement in any such procedure would always have to be considered carefully.