TLA v Chelsea and Westminster Hospital NHS Foundation Trust

The issue I must decide is whether the Claimant, a litigant in person, has capacity to litigate the issues currently before the Court in the claim he commenced in December 2021.

The issue arises for consideration because Dr Susan Bradbury, the medical expert instructed by the Defendant to prepare a report on causation, condition and prognosis, expressed the opinion in her draft report that the Claimant lacked litigation capacity for the purposes of this claim. On receipt of that opinion, the Defendant’s solicitors properly brought the matter before the Court. That is because the effect of Part 21 of the Civil Procedure Rules 2008 (“CPR”) is that a party who lacks capacity to conduct proceedings (described in Part 21 as a “protected party”) must have a litigation friend to do so on their behalf; and no person may take any step in the proceedings until the protected party has a litigation friend.

The claim was then stayed pursuant to the Order of Master Sullivan made on 3 July 2025 pending a decision on the Claimant’s litigation capacity.

In determining this issue, the Court must adopt a quasi-inquisitorial approach, interrogating the available evidence, including that of the Claimant. The starting point is the presumption of capacity which can only be rebutted if the evidence demonstrates, on the balance of probabilities, that the Claimant lacks capacity.

The Defendant has adopted a neutral stance towards this issue, providing the Court with assistance as appropriate.

The claim brought by the Claimant alleges breaches of the Defendant’s duty of confidentiality owed to him; and other infringements by the Defendant of rights provided by statute and pursuant to the Defendant’s policy. The Claimant’s allegations concern matters on various dates since 6 January 2014. The Claimant alleges that he has sustained psychiatric and psychological injury in consequence.

The Defendant has admitted two breaches of its duty of confidentiality by sending two clinical letters to the Claimant’s GP contrary to his instructions. Other allegations are contested as are issues of causation and quantum of damage.

Alongside this claim the Claimant has made a series of complaints to regulatory bodies about the Defendant’s alleged conduct. He has had mixed success. Around 28 September 2018 the Parliamentary Health Services Ombudsman (“PHSO”) reported a finding in the Claimant’s favour on three issues. A breach of the Defendant’s policy when suspending the Claimant from non-emergency care for a period from 9 February 2017 was found; a comment made by an employee of the Defendant about the suspension was found to be inappropriate; and a report sent to the Claimant’s GP contrary to his instructions was found to be a breach of the Defendant’s duty of confidentiality. A complaint to the Information Commissioner’s Office (“ICO”) about a discharge summary sent in error to the Claimant’s GP on 16 June 2017 resulted in no further action being taken although the ICO indicated that a record of the transaction would be retained for reference should any further incident arise.

A further complaint to the PHSO regarding alleged data breaches is ongoing and undetermined.

Other complaints made by the Claimant to regulatory and other bodies including the Solicitors’ Regulatory Authority, the General Pharmaceutical Council, the Nursing and Midwifery Council and to the Metropolitan Police have not resulted in any sanction against the Defendant or its advisers.

The Claimant’s provisional Schedule of Loss pleads damages exceeding £350,000. The Defendant has not been required to serve a Counter-schedule thus far but disputes the Claimant’s assessment. It is in that context the Defendant instructed Dr Susan Bradbury, Consultant Psychiatrist, to report on causation of injury, condition and prognosis.

Dr Bradbury assessed the Claimant via remote video platform on 21 and 24 February 2025. She prepared a draft report in June 2025 providing her expert opinion in response to her instructions. She also expressed the opinion that the Claimant lacked capacity to conduct the proceedings as an unrepresented person. This was an issue Dr Bradbury raised of her own initiative. Until that point the Claimant had not been represented in this litigation and no concerns had been raised about his litigation capacity. The Defendant properly disclosed the draft report to the Claimant and the Court, waiving privilege in its contents.

Following directions made by Master Sullivan for further expert evidence on the issue of capacity, the Claimant obtained an addendum report dated 19 August 2025 from Dr Keren Fisher, a Clinical Psychologist who had already served a report on condition and prognosis. Dr Fisher’s opinion was that the Claimant did have litigation capacity. Dr Bradbury and Dr Fisher prepared a joint statement dated 2 October 2025.

Further expert evidence has been filed and served by the Claimant from Dr Olga Chelidoni, Chartered Psychologist (report dated 12 February 2026 and rebuttal report dated 30 March 2026) and from Dr Hossain Mohammed, Consultant Psychiatrist and Dr Emma Harding, Consultant Clinical Psychologist (joint report dated 31 March 2026). Dr Bradbury has written a response to Dr Chelidoni’s report (letter dated 12 March 2026) and the joint report of Mr Mohammed and Dr Harding (email dated 23 April 2026).

On 14 May 2024 in unrelated proceedings in which the Claimant was a party, judgment was handed down in the Employment Tribunal following a hearing in February 2024. The Claimant had successfully brought a claim for unfair dismissal. Dr Bradbury considered the judgment and its implications for her capacity assessment on 16 November 2025.

For completeness, the Claimant also has ongoing litigation in the County Court (claim issued on 13 June 2024) which proceedings were also currently stayed by Order dated 24 March 2026 consequent on Master Sullivan’s Order, pending the determination of the capacity issue.

The legal framework when making a determination as to capacity is helpfully set out in the note provided by Mr Hill and which I respectfully adopt.

The statutory regime for capacity is set out in the Mental Capacity Act 2005 which provides five key principles which must be applied for the purposes of the Act. Of particular significance in this case are the principles of the presumption of capacity unless the contrary is proved (s1(2)) and the principle of autonomy, namely that a person is not to be treated as unable to make a decision merely because he makes an unwise decision (s1(4)).

Section 2(1) of the Act provides a single test for capacity and defines a person who lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain. Capacity is thus issue and time specific.

A determination of capacity engages both functional assessment (whether the person is unable to make a decision for himself) and diagnostic criteria (if so, whether this is because of an impairment of or disturbance in the functioning of the mind or brain). The issues must be approached in this order (see A Local Authority v JB [2021] UKSC 52). The Court must identify the “matter” about which the evaluation of whether the person is unable to make a decision for himself must be carried out. Then the information relevant to that decision must be identified.

If on functional assessment no inability to make a decision is shown, then the matter ends there. The diagnostic question must only be resolved if the potentially incapacitous person has been shown to be unable to make a decision.

Section 3 provides that for the purposes of section 2, a person is unable to make a decision for himself if he is unable –

Section 3(4) provides that the information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another or failing to make the decision.

Where proceedings concern litigation capacity, the focus must be on the particular proceedings in issue, taking account of its complexity and the issues likely to arise (Macpherson v Sunderland City Council [2025] EWCOP 18 (T3)). The fact that a litigant may be difficult for a court to manage, has strongly held views or makes decisions that would not be made by a person of “ordinary prudence” is not synonymous with incapacity and must not be conflated with it.

When considering the ability to weigh information (the principal issue in this case), the Court should not require a potentially incapacitous person to “undertake a more refined analysis than persons of full capacity” because to do so would undermine the principle of autonomy (A Local Authority v JB [2021] UKSC 52).

In determining whether the Claimant lacks capacity to conduct these proceedings, I have focussed on the following key areas of evidence:

Other medical evidence in the hearing bundle has tangential relevance to the issue of capacity though does not address it directly.

It is important to record that when considering the evidence I do so from the perspective of the Claimant’s litigation capacity. It is not part of my task to judge the ultimate merits of his claim or the defence to it; nor to resolve differences in the evidence save where it is relevant to the single issue of litigation capacity that is before me.

The Claimant commenced this claim in 2021 and has been an unrepresented litigant throughout. There have been eight oral case management hearings. At no time has any of the judges presiding over those hearings raised any concern over the Claimant’s litigation capacity.

The Claimant has parallel proceedings in the County Court in which he alleges the Defendant has breached the Equality Act (Footnote: ¹). There is no dispute that those proceedings were stayed only because of the High Court Order pending determination of capacity but would not have been stayed otherwise. The judge managing the County Court claim raised no concerns over the Claimant’s litigation capacity.

It is right to record that the Claimant made an application which was dismissed and certified as totally without merit by Murray J after consideration on the papers. The Claimant’s application for permission to appeal that decision was unsuccessful. There is nothing in the reasoning on the face of the Order made by Murray J or Edis LJ when considering the application for permission to appeal that indicates that the Claimant’s written submissions were incoherent notwithstanding they were found to lack merit.

In preparation for this hearing the Claimant has marshalled expert evidence on capacity by approaching an appropriate expert and providing relevant instructions.

The Claimant conducted himself appropriately during the hearing. He was courteous and respected the authority of the Court. He kept to the time limits imposed on his submissions and cross-examination and prioritised his material accordingly. His cross-examination and submissions at times strayed beyond what was evidentially supported but I recognise that it is sometimes difficult for unrepresented litigants to appreciate and recognise the limits of what can properly be put to a witness or in submissions to the Court.

His approach to the conduct of the proceedings and in particular his ability to make decisions in the litigation after weighing information was explored through his oral submissions and evidence from the witness box. In key areas he demonstrated an ability to identify decisions within the litigation (past and potentially in the future), the factors relevant to the making of that decision and the respective weight he attached to those factors.

The first of these was the use of lawyers. He explained that he had chosen not to engage a lawyer because his personal privacy was extremely important to him and he believed that there was a risk of his identity being disclosed to others through the process of instructing a professional lawyer to act for him. He also identified cost as a relevant factor though said this did not weigh as heavily in his decision-making. He accepted that being unrepresented came with some disadvantage. He believed he had not been treated with as much courtesy and respect by the Defendant’s solicitors as an instructed lawyer would have been; but he said he thought this particular difficulty could be mitigated by “proper case management”. He also recognised that a professionally trained lawyer was better able to make legal submissions to the Court because of their training. He told me that he had taken some informal advice from a barrister in connection with the case, for example about a technical point under the Social Care Act and had sought a view from others as a “reality check” on the litigation as a whole. He observed that even if he were to instruct a lawyer he remained free to reject advice he might be offered if he did not agree with it.

The second area was in relation to mediation and/or continuing to a contested trial. The Claimant said he believed the case was likely to settle through mediation. He expected mediation to be ordered by the Court and he observed that statistically most civil litigation in the High Court did settle prior to trial. He said he had personal experience of having settled litigation in the past when he had been assisted by a lawyer which he had found beneficial. He agreed he had rejected the Defendant’s offer to mediate previously. His evidence was that this was for two reasons – he wanted to be satisfied he had full disclosure from the Defendant (including by a physical inspection of their data records) so that he could ensure that he had identified any additional causes of action he might pursue so as to bring finality to the case if it were to settle; and he believed the Defendant’s offer to pay for him to have legal advice as part of the mediation process had not been sufficiently specific because it had not clearly identified the financial parameters. When questioned by Mr Hill about the conditions he would impose before agreeing to engage in mediation he demonstrated understanding that the Defendant would not want a “moving target” and that what he had said about his conditions for mediation was now “on the record”, implying an expectation it was reasonable for him to be held to them.

He identified some advantages of settling the case through mediation (the saving to the public purse and the protection of his privacy) and also some disadvantages (the wider public importance of the case in highlighting the Defendant’s failures to manage data, if proved, would be lost).

He said he recognised the costs consequences of continuing with the litigation were significant but said that this was not a determinative factor for him because he had the financial resources to fund his case through to trial and to discharge any adverse costs order.

He identified the risks of a contested trial as including the risk of his privacy being breached and also the risk that the “Defendant could petition to make me a vexatious litigant” which I understood to mean that the Claimant had identified the risk of being the subject of a form of Civil Restraint Order and the associated procedural difficulties and reputational damage of this. He believed that his case had merit because the Defendant had admitted two of the alleged breaches and some of his complaints had been upheld by regulatory bodies. He described the purpose of the litigation as being to achieve compensatory damages for the substantial psychiatric and psychological harm he alleged had been caused to him. He felt that this litigation was the only way he could vindicate his rights after exhausting other avenues without achieving what he considered sufficient satisfaction. He recognised that his immediate concern over future data breaches affecting himself personally had been addressed through the use of an NHS alternative identity and so the litigation was no longer necessary for this specific purpose.

His style of giving evidence, asking questions and making submissions sometimes lacked focus and he was inclined to be expansive. However, when re-directed I found him to be respectful of the Court’s authority and then to address the particular issue in a more focussed way. He was able to provide explanations for what he said where necessary.

At the end of the hearing he was proactive in enquiring about the form of the judgment, and the steps for an appeal if it were to be delivered orally.

Dr Bradbury is an experienced Consultant Psychiatrist and qualified Psychotherapist. She was instructed by the Defendant to report on causation, condition and prognosis in connection with the claim and had seen the Claimant remotely on two occasions.

Although she had not been specifically instructed to consider the issue of capacity, her draft written report did so with respect to the Claimant’s capacity to conduct this litigation. She acknowledged there was a presumption of capacity but expressed concern that “some matters have not progressed as a result of [the Claimant’s] behaviour”. She then approached her capacity assessment by starting with the diagnostic criterion, namely whether there was an impairment of, or a disturbance in the functioning of, the mind or brain. She concluded that this element was satisfied by the impact of the diagnosis she had made of paranoid personality disorder. She then went on to consider the functional criterion by addressing the four aspects of functional decision-making set out in s3(1) of the Mental Capacity Act 2005. She found no limitation in the Claimant’s ability to understand information relevant to a decision, retain that information and communicate his decision. The area in which she considered the Claimant to be impaired was in his ability to use or weigh that information as part of the process of making a decision.

The key part of her assessment was as follows:

“In my opinion, the Claimant’s paranoia and his lack of insight into his distorted thinking are severe impediments to him being able to see or even acknowledge both sides of an argument, as he will be driven by his own unquestioning perception of reality that is coloured by his intense antipathy and paranoia. This antipathy has already led him to be unable to accept the conclusion of any of his complaints. He has a series of overvalued ideas involving mistrust of health and legal professionals that are by definition not amenable to reason. He is unable to weigh in the balance any contribution he has made to the difficulties he has encountered with the Trust such that he can appreciate the Defendant’s position. He is unable to weigh the limitations of the outcome of litigation e.g. apology, financial redress, against his desired outcome i.e. the Trust changing their policy, terms of engagement, such that he might consider discontinuation and other means of achieving the outcome. He has created a web of complaints, refusals and Court applications that is confusing and, in my opinion, are delaying the justice that is his right. On the balance of probabilities, should the Claimant find this opinion unpalatable, this will, to him be evidence of a failure in professional standards and grounds for complaint.”

In giving oral evidence Dr Bradbury told me that she had never before assessed litigation capacity. She had experience of assessing capacity in relation to property and affairs though had done so infrequently. She readily accepted that the main focus of her report had not been on capacity; and that she had approached the capacity test incorrectly by beginning with the diagnostic criterion rather than the functional assessment.

In her view, the Claimant’s paranoia distorted his thinking so that he attributed malintent where it did not exist. In her view this impeded the weighing of information in a decision-making process and instead led to a pre-determined outcome. She felt he was unable to compromise which would impede any settlement discussions.

She conceded that within the conduct of the litigation there would be areas of decision-making for which he would have capacity, for example, taking structured steps towards progressing the litigation; but she believed there were other areas where he would not, for example in attempting to decide whether to settle the case or proceed to trial. She said she felt the Claimant’s antipathy towards the Defendant was driving his behaviour so that he was seeking further recompense from the Defendant when it had “done as much as possible to resolve the claim.” She felt the intensity of the Claimant’s emotions were driving the claim. She said he would struggle to accept the Court’s rulings and its ultimate judgment and would in her view make continued attempts to re-ignite the litigation. She believed that his approach in identifying repeated alleged breaches of confidentiality on the part of the Defendant and the attitude he demonstrated towards an expert who disagreed with him were indicators of a litigant who lacked litigation capacity.

When asked directly if her mistaken approach to the test for capacity had resulted in her assessing the Claimant’s function through the lens of her diagnosis, she accepted that this was a fair observation and that as a clinician she was motivated to protect people from themselves. She saw the litigation as causing distress and damage to the Claimant’s mental health. She agreed that her view of the Claimant’s incapacity flowed from the diagnosis and accepted that she found it difficult to tease out the functional test from her diagnosis.

Her opinion was that the Claimant had managed the Employment Tribunal proceedings in which he had been successful because of the involvement of an instructed lawyer.

Dr Fisher is a Clinical Psychologist instructed by the Claimant. She had produced an addendum report addressing capacity issues and a joint statement with Dr Bradbury, on the capacity issues. She did not give oral evidence so there was no opportunity to investigate her experience of litigation capacity assessments nor to test her opinions.

In responding to Dr Bradbury’s written evidence, Dr Fisher took the staged approach to capacity (functional assessment followed, if appropriate, by diagnostic criteria) in the same incorrect order as Dr Bradbury so that she responded to Dr Bradbury’s opinion about the diagnostic criteria first. This was also the approach taken in the joint statement.

Her view was that the Claimant’s antipathetical approach to the litigation could be explained by the adversarial context of the case in which opposing parties had an entrenched position. She disputed the characterisation of the Claimant’s views as paranoid, suggesting that they might be justified in the context of the claim he was pursuing.

Her view was that the Claimant did have litigation capacity. She did not agree that he was impaired in his ability to weigh information and that the antipathy and mistrust he had demonstrated were normal responses to the abnormal situation of adversarial litigation. The complaints he had raised about the Defendant were matters that called for the Court’s determination and the Court had not determined the Claimant’s allegations were without merit.

Dr Chelidoni is a Chartered Psychologist and Mental Capacity Assessor. Her main experience is in making capacity assessments. She had produced a written report dated 12 February 2026 which was to consider litigation capacity exclusively and a further report which was a response to Dr Bradbury’s report. She had access to the key medical reports in the case but had not seen other documents connected with the litigation nor the Claimant’s full medical history. In making her assessment she was largely dependent on the Claimant’s own account.

Her view was that during her examination the Claimant had demonstrated the ability to use and weigh information in relation to the conduct of these proceedings. She had discussed with him the merits of the case, his understanding of the Defence and arguments that were counter to his position, the procedural options available to him, including mediation, and his reasons for declining medication currently. She considered that his own view of the merits of his case was grounded in evidence and in regulatory findings rather than in persecutory ideation. She found his reasoning to be structured, coherent and connected to identifiable evidence.

She was critical of Dr Bradbury’s approach in relying on diagnosis before identifying functional inability. She suggested that incapacity had been inferred from a diagnosis and so the application of the statutory test was fundamentally flawed. She considered that Dr Bradbury had conflated a view of the litigation as being unwise or ambitious with a lack of capacity on the part of the litigator.

The Claimant had participated in recent Employment Tribunal proceedings. He had instructed a lawyer. He had given evidence to the Tribunal. At no point had any concern been expressed either by those acting for him or by the Tribunal itself.

The Claimant told me he had been involved in other litigation but there was no sufficient evidence about other claims to draw any inference from them about his capacity.

Capacity is issue and time specific. The central question for me to decide is whether the Claimant has capacity to conduct this claim (“litigation capacity”). I approach that question on the basis that the Claimant is and will remain unrepresented in these proceedings, albeit even if he were to be represented, he would still need to have the capacity to give instructions and make decisions in the litigation. Those decisions would include whether to accept or reject advice he was given. No litigant is compelled to follow the advice of a lawyer; and not all lawyers give good advice.

My starting point is the presumption of capacity. That presumption stands unless rebutted by evidence that meets the threshold of the civil standard of proof namely makes incapacity more likely on the balance of probabilities.

The first stage I must consider is whether the Claimant is able to understand the issues on which a decision will be required (see Masterson-Lister v Brutton Co [2002] EWCA Civ 1889). Those issues are, predominantly, whether to agree to attempt alternative dispute resolution and on what terms; whether to compromise the claim and if so, on what terms; whether to proceed with the claim to trial which then requires an understanding of the relevant procedural steps that must be undertaken; and/or whether to instruct a professional lawyer at any future stage of the proceedings.

To answer that question, I must next consider the information relevant to those decision-making processes (A Local Authority v JB). In the context of this litigation, those issues are likely to include evaluating the strengths and weaknesses of his claim and the defence; understanding the importance of managing procedural steps effectively; making the decisions necessary to carry out procedural requirements and make any necessary applications; understanding the advantages and disadvantages of discontinuance, settlement and proceeding to a contested trial; evaluating the value of the litigation in terms of what would be achievable by way of a positive outcome for the Claimant either through mediation/settlement or at the conclusion of a contested trial; the potential consequences of an adverse outcome; the likelihood of a positive or adverse outcome; and whether at any stage the decision not to engage a lawyer should be re-assessed.

I next turn to the criteria in s3(1) of the Act. There is no evidence before me of any inability on the part of the Claimant to understand the relevant information, retain it and communicate his decision. The expert evidence does not point to any inability in any of these areas. The Claimant’s presentation today justifies that confidence.

The issue on which there is contested evidence is in relation to s3(1)(c) of the Act, namely whether he is unable to use or weigh that information as part of the process of making the decision.

My conclusion is that he has not been shown to be unable to do this. My conclusion is that his functional decision-making in conducting this litigation is not impaired within the meaning of the Act. He does not lack litigation capacity. In reaching that conclusion I have rejected Dr Bradbury’s opinion to the contrary. I have preferred the opinion of Dr Chelidoni and attached weight to other factors I set out below. My reasons are as follows.

Firstly, Dr Bradbury’s assessment of capacity is substantially undermined by the error she made in the way in which she approached the questions that had to be considered in making the assessment. She frankly accepted that she believed that the diagnostic criterion had to be addressed as the first stage of analysis and was not aware of more recent authority that mandated consideration of the functional criteria as the first stage. Her error had the result that she viewed the Claimant’s functional decision-making through the lens of the diagnosis she had arrived at rather than making an openminded assessment of his ability to weigh or use information to make a decision.

When asked in her oral evidence to approach the assessment from the correct starting point, she accepted that she found it very difficult to untangle her functional assessment from her diagnosis. She was not able to explain convincingly the areas in which she believed the Claimant was unable to use or weigh information without straying into a value judgment about how he did so. Her opinion on this issue seemed to me to be unduly influenced by her own view of the wisdom and reasonableness of the position he had taken in relation to the Defendant.

It also appeared from her evidence that another factor influencing her view on capacity was her clinical opinion that the litigation was causing damage and distress to the Claimant such that pursuing it was to the detriment of his mental health. She did not see any positive outcome for the Claimant was at all likely. She saw his determined pursuit of the claim in those circumstances as unreasonable and unwise. She recognised that as a clinician, her instinct was “to protect people from themselves”.

Time will tell whether she is correct in her assessment of the merits of the claim and/or its ultimate impact on the Claimant. But in my judgment, she has conflated her view of the wisdom of pursuing the claim with issues of capacity. It is undoubtedly the case that the Claimant has strong views about this litigation, and his priorities are influenced by those views. When making decisions about the conduct of the claim, he has and no doubt will continue to put those strong views at the forefront of his decision-making process. But he is not shown to lack capacity simply because he weighs factors differently from others. Nor is he shown to lack capacity because he makes decisions that may be seen as unwise by others, or which are not considered by others to be in his own best interests.

I have considered Dr Bradbury’s particular concern with the Claimant’s antipathetical approach towards the Defendant and towards evidence with which he does not agree. In the context of functional decision-making, she may well be right that he lacks objectivity. Many capacitous litigants lack objectivity when conducting a claim in which they passionately believe. They may lack an objective view of the defence to their claim, the motives of a defendant, the evidence that is against them or the motivation of a witness giving that evidence. A lack of objectivity may be expressed strongly. But it does not equate with incapacity. I am not persuaded by Dr Bradbury’s evidence that the Claimant is unable to make the relevant decisions necessary in this case.

My conclusion is not undermined by the contents of the exhibits to Ms Isherwood’s witness statement dated 30 April 2026. These contain tables listing Court Orders in these proceedings (Exhibit MJI 1) and complaints made by the Claimant relating to the Defendant outside the conduct of these proceedings (Exhibit MJI 2). Many capacitous litigants who have strongly held views make claims, applications and complaints. Sometimes they are repeated and persistent. Sometimes they turn out to lack merit. It is not part of today’s hearing to determine the merit of the substantive allegations made in this case. But I bear in mind that the Court has case management powers that can be utilised where claims or applications are shown to lack merit. An unmeritorious claim or application does not equate with a lack of capacity on the part of a claimant or applicant.

I did not find Dr Fisher’s evidence on this issue of great assistance. The way in which her addendum report and the joint statement were structured suggested that she had followed the same approach as Dr Bradbury in addressing the diagnostic considerations before those of function albeit they disagreed on the issue of capacity and diagnosis. As she had not given oral evidence I was unable to resolve the issue of how she had approached the capacity test and in consequence have not attached weight to her opinion on this issue.

Dr Chelidoni had much less material available to her when she made her capacity assessment than Dr Bradbury. She did not give oral evidence so that her opinion could not be tested. To that extent there are potential limitations in the value of her opinion.

However, she did approach the capacity test from a legally correct standpoint by asking the functional question first before considering any potential diagnosis. She answered the functional question by reference to specific examples of issues the Claimant had been able to reason through with her, explaining what factors he had identified as relevant to a decision and why he would weigh the factors as he did. Her conclusions on the central issue were therefore well supported. I found it to be persuasive on this issue, even after making fair allowance for the limitations I have identified above.

Dr Chelidoni’s evidence resonated with the evidence given by the Claimant from the witness box and the way in which he approached the submissions he made. He was able, when asked, to identify competing considerations (the advantages and disadvantages of instructing a lawyer or proceeding to trial, for example) and explain why some factors were of greater importance to him than others and therefore weighed more heavily in his considerations. The evidence he gave on these issues was coherent and considered, even if others would approach the relevant factors and balancing exercise differently.

I am fortified in my conclusion on the ultimate issue of litigation capacity by the fact that the Claimant has represented himself in numerous oral hearings within these proceedings since the claim commenced in 2021 without any judicial intervention to question his litigation capacity. The Defendant confirmed to me that the Claimant has not been found to be in breach of any case management order to date. Recently he has participated in proceedings in the Employment Tribunal in which he was successful. Although he was represented during those proceedings, unlike the instant case, there is no indication in the judgment of any concern about capacity expressed either during the proceedings by his own lawyer or by the Judge.

He prepared appropriately for this hearing identifying the relevant expert evidence he needed to marshal and then participated effectively in the hearing. Time constraints meant that he had to prioritise his cross-examination and submissions. He did so.

Having resolved the functional stage of the capacity determination in favour of the Claimant having litigation capacity, I have not gone on to consider the competing evidence on diagnosis. That evidence insofar as it is relevant to issues of causation of injury, condition and prognosis will be addressed in the main claim. For the purpose of assisting the Claimant as an unrepresented litigant, I emphasise that the fact that I have not accepted Dr Bradbury’s opinion on the issue of litigation capacity should not be treated as any indication of how the Court will view her opinion on these other issues.

My conclusion is that the presumption of litigation capacity has not been rebutted.