KDS v EUI Limited

The Claimant, KDS, was born on XXXX and is now aged 26. He sustained significant injuries in a road traffic accident which occurred on 19th November 2022 on the M6 motorway. Tragically, the head-on collision resulted in the death of the daughter of the Claimant’s partner. The Claimant himself suffered a number of injuries, including a traumatic brain injury. The Defendant driver also died in the collision.

These proceedings were issued in the High Court with a professional litigation friend acting on behalf of the Claimant pursuant to a Certificate of Suitability dated 15 July 2025. No court order was made appointing the litigation friend. The Certificate of Suitability was supported by an updated report of the Consultant Neuropsychiatrist, Dr Achinivu, dated 28 February 2025. By a previous order of this court, an anonymity order has been made.

The Claimant now contends that he has capacity to conduct these proceedings. By an application dated 30 October 2025, supported by a witness statement from his solicitor, Mr Brian Robinson, of the same date, the Claimant sought a determination of his capacity as a preliminary issue.

The application came before the court for directions hearings on 17 December 2025 and 7 July 2026, at which the appropriate procedural and case management steps necessary for the determination of that issue were considered. It was ultimately directed that updated medical evidence addressing the Claimant’s litigation capacity be obtained from Dr Obinwa. Dr Obinwa subsequently provided further responses to written questions seeking clarification of her opinion.

I was referred at the earlier directions hearings to the potentially conflicting authorities as to the approach to take in respect of determining the issue of litigation capacity. The parties eventually agreed that the approach now taken was an acceptable one to which all agreed. As such, it is unnecessary in this judgment to delve too deeply into the differing lines of authorities. In brief however, In Masterman-Lister, Kennedy LJ stated –

“The courts should always, as a matter of practice, at the first convenient opportunity, investigate the question of capacity whenever there is any reason to suspect that it may be absent …”

It is accepted that where the Claimant disputes a lack of litigation capacity, the court should undertake an inquisitorial exercise into the issue. Appropriate medical evidence relevant to the issue of capacity should be disclosed and considered. Further to safeguard a Claimant’s rights under Article 6 (1) of the EHCR Convention, it is imperative that the court allow a vehicle for the Claimant’s views to be known to the court. A party found to lack capacity must have the right to challenge the determination (RP v United Kingdom [2013] 1 FLR 744.)

Given the importance of this issue to the Claimant, and the strength of the views he has expressed concerning his capacity, the matter was listed for an in-person hearing on 26 August 2026 so that he could, if he wished, attend and make representations to the court. The court has been informed, however, that the Claimant does not wish to attend the hearing nor make direct representations. His legal team have made written submissions which I have considered with care.

Further, the opinion of Dr Obinwa was appropriately challenged/tested by written questioning. No party considered it necessary for Dr Obinwa to attend and given the detailed analysis of issues in her reports, I did not require her to answer any questions from the court.

In those circumstances, and by agreement between the parties, the application for a determination of the Claimant’s capacity to conduct litigation may properly be determined on the papers. This judgment addresses that issue.

The Claimant's position is clear. He strongly contends that he has capacity to conduct these proceedings and to provide instructions directly to his legal representatives.

The Claimant's solicitors and the existing litigation friend (who is a professional litigation friend) have adopted a neutral position on the application. They do not seek to advance a positive case either that the Claimant has capacity or that he lacks it. Rather, they seek a determination from the court so as to provide clarity as to the person from whom instructions should properly be taken in the future conduct of these proceedings.

The Defendant requires the Claimant to prove that the presumption of capacity is rebutted and that the Claimant lacks capacity to litigate.

Pursuant to CPR 21.2, a party who lacks capacity to conduct proceedings is a protected party and must have a litigation friend to conduct those proceedings on his behalf. The Rules further provide that, unless the court otherwise orders, any step taken before a protected party has a litigation friend is of no effect. Accordingly, where a genuine issue arises as to a party's litigation capacity, its determination is of fundamental importance to the proper conduct of the proceedings.

The statutory framework is provided by the Mental Capacity Act 2005 ("the MCA"). The starting point is the presumption of capacity. A person must be assumed to have capacity unless it is established that he lacks it. The purpose of the Act is both to empower and to protect those whose decision-making may be affected by an impairment of, or disturbance in the functioning of, the mind or brain.

Capacity is both decision-specific and time-specific. The question is not whether an individual possesses capacity in a general sense. Rather, the court must determine whether that individual has capacity in relation to the particular decision under consideration at the relevant time. It follows that a person may have capacity to make certain decisions, including important decisions affecting aspects of daily life, whilst lacking capacity to make others that are more complex or demanding. Equally, capacity may fluctuate over time and must therefore be kept under review where circumstances require.

The Act further recognises the importance of supporting autonomous decision-making. A person is not to be treated as unable to make a decision unless all practicable steps to assist him in doing so have been taken without success.

I also bear firmly in mind the principle that a person is not to be regarded as lacking capacity merely because he makes a decision that others consider unwise. The Act protects the right of individuals to make decisions which others may regard as imprudent, provided they possess the capacity to make those decisions.

Section 2 of the MCA defines when a person lacks capacity for the purposes of the Act. Section 3 sets out the functional test by which the court is to determine whether, because of an impairment of or disturbance in the functioning of the mind or brain, a person is unable to make the decision in question.

In the context of litigation, the relevant question is whether the Claimant has the capacity to conduct these proceedings and to provide appropriate instructions in relation to them. In considering that issue, I apply the principles set out in sections 2 and 3 of the MCA as below (Footnote: ¹).

In cases where capacity is in issue, the court will often have the benefit of witness evidence from the claimant and from family members or friends identifying the challenges faced by the claimant, any difficulties in retaining or weighing information, and examples of real-life decision-making which may be relevant to the assessment of mental capacity, both in relation to litigation and the management of financial affairs. Given the relatively early stage of these proceedings, full witness evidence has not yet been exchanged. I am therefore heavily reliant upon the expert evidence and upon the information provided to the experts by, or on behalf of, the Claimant.

I have considered all of the medical evidence disclosed in these proceedings. An issue arose at an earlier case management hearing concerning reliance upon material in respect of which legal professional privilege and confidentiality had not been waived. For the purposes of this judgment, however, I have relied only upon evidence that has been seen by both parties. It was in order to avoid any potential difficulty associated with reliance upon undisclosed material that the court directed the instruction of Dr Obinwa to provide an opinion directed solely to the issue of litigation capacity.

Dr David Smith, consultant neurologist, in his report dated 22 December 2024, concluded that the Claimant had sustained a mild, probable traumatic brain injury. He considered that the Claimant's loss of autobiographical memory was more likely attributable to psychological factors than to structural brain injury, although he recommended that further expert opinions be obtained. Dr Smith expressed no opinion on the issue of capacity.

In his report dated 6 February 2024, Dr Stephen Mullin, Consultant Clinical Neuropsychologist, concluded that the Claimant probably lacked capacity in relation to litigation and financial matters. However, he deferred to the opinion of a psychiatrist, preferably a neuropsychiatrist, on that issue.

Dr Kanu Achinivu, consultant neuropsychiatrist, examined the Claimant in January 2025 and initially concluded that he retained litigation capacity. Following receipt of further information, he produced a further report in February 2025 in which he concluded that the Claimant lacked capacity. I note that those reports, together with a subsequent report, have now been disclosed to the Defendant (see paragraph 5(c) of the Claimant's skeleton argument for the hearing on 7 July). It appears that Dr Achinivu's initial assessment was based principally upon the Claimant's own account. He had not then seen any neuropsychological evidence, although he had considered some of the neurological evidence from Dr Smith. He made no reference to any witness evidence from family members or others.

Dr Achinivu discusses in some detail the Claimant's perception of the litigation and of those involved in it. He concludes that, from a psychological perspective, the Claimant has limited insight into his need for care and support and that this affects his ability to seek, understand and act upon professional advice. He attributes these difficulties to the psychological consequences of the accident. He further observes that, even with assistance from someone who knows him well, the Claimant's ability to use and weigh information is impaired. Addressing causation, he states that the organic symptoms arising from the traumatic brain injury affect the Claimant's decision-making in relation to the litigation and that his enduring cognitive impairment further compounds those difficulties.

In his third report, Dr Achinivu provided an explanation for the change in his opinion on capacity. In substance, this amounted to a reiteration of the reasoning contained in his later report. Given that the Claimant has consistently disputed any suggestion that he lacks litigation capacity, I have considered with particular care the fact that Dr Achinivu altered his opinion following receipt of additional information.

The evidence of Dr Chinwe Obinwa, neuropsychiatrist, contained in her report dated March 2026 and her responses to Part 35 questions dated 10 August 2026, was obtained pursuant to the court's order for a further independent opinion directed solely to the issue of litigation capacity.

Dr Obinwa concludes that the Claimant lacks capacity to litigate. In her opinion, he has only a limited understanding of the nature and purpose of the claim, struggles with recall and retention of complex information, and demonstrates evidence of executive dysfunction. She concludes that he is unable to use and weigh relevant information, even with support. Dr Obinwa attributes his functional impairment and cognitive difficulties to a mild neurocognitive disorder and post-traumatic stress disorder arising from the index incident.

It is of particular note that Dr Obinwa's assessment was conducted over the course of two days, partly at the offices of the Claimant's solicitors and partly by telephone. She also interviewed the Claimant's mother, who provided additional information regarding his presentation and day-to-day functioning. A comprehensive history was taken, and the GP and hospital records were carefully reviewed. Dr Obinwa explored practical issues concerning the Claimant's engagement with and understanding of the litigation process. She identified both psychiatric injury and significant cognitive and psychological difficulties.

At paragraph 3.20 and following of her report, Dr Obinwa carefully sets out the basis of her assessment and the legal and functional tests applicable to litigation capacity. She applies those principles directly to the Claimant's presentation. Whilst recognising that the Claimant understands the roles of the various parties involved in the litigation and is capable of liaising with his solicitors, she concludes that his poor understanding of the nature and extent of his injuries, and of the way in which they affect his functioning, demonstrates a significant lack of insight. She accepts that the Claimant is capable of making straightforward day-to-day decisions. However, complex decisions arising within litigation of this nature, involving substantial documentation and nuanced considerations, would require significant support. Dr Obinwa concludes that, if information is presented in manageable segments and reasonable adjustments are made, including the provision of regular breaks, the Claimant may be able to understand that information at the time it is explained to him.

However, Dr Obinwa considers that the Claimant's emotional difficulties, for which the litigation itself acts as a trigger, create substantial barriers to his ability to retain and process the complex information required for effective participation in these proceedings. In her opinion, he "will struggle to hold the information in mind, manipulate it in order to consider the pros and cons, and also to consider the consequences of his decision". She concludes that the Claimant is unable adequately to process, use and weigh the information relevant to the decisions that arise in the litigation so as to make informed choices. It is following that careful and balanced analysis that she concludes that the Claimant lacks capacity to litigate.

Dr Obinwa's opinion was appropriately challenged by way of Part 35 questions served on behalf of the Claimant. The Defendant did not raise any questions. In her replies, Dr Obinwa confirmed that, in her opinion, the Claimant's lack of capacity arises from a combination of factors amounting both to an impairment of, and a disturbance in the functioning of, the mind and brain for the purposes of the Mental Capacity Act 2005. She further explained that the proceedings themselves act as a trigger for his difficulties because they repeatedly expose him to the traumatic events underlying the claim. As a consequence, he is unlikely to be in a state in which he can reliably retain, use and weigh the relevant information. Dr Obinwa concluded that, even with appropriate support and scaffolding, it is extremely unlikely that the Claimant would be able to make capacitous decisions, or regain litigation capacity, whilst these proceedings remain ongoing.

I remind myself that there is a presumption of capacity. The Claimant contends that he retains capacity to conduct these proceedings. He has elected not to participate directly in this application, although he has been afforded the opportunity to do so. Accordingly, I have not had the benefit of meeting him personally.

I must therefore place reliance upon the expert evidence before the court. I have considered that evidence carefully and in the round. The only expert who initially expressed the opinion that the Claimant retained litigation capacity was Dr Achinivu, consultant neuropsychiatrist. However, he subsequently amended his opinion after receiving additional information. When he first expressed his view, the material available to him was limited. By the time of his later report, he had the benefit of considerably more detail. In my judgment, the opinion expressed in his later report, informed as it was by fuller evidence and analysis, is the more reliable and persuasive.

The clear opinion of Dr Obinwa, a further consultant neuropsychiatrist instructed specifically to address the issue of capacity, is that the Claimant lacks capacity to conduct litigation. In my judgment, both her report and her answers to the written questions demonstrate a careful and thorough assessment of the issue. She applied the correct legal principles and the requisite functional test. She met with the Claimant, accompanied by his mother, allowed breaks where necessary, and took sufficient time to explore the relevant issues. Notwithstanding those measures, she concluded that the Claimant lacks capacity for the reasons set out in her evidence. I find Dr Obinwa's evidence to be clear, cogent and robust.

I fully recognise that the Claimant strongly maintains that he retains capacity. I have taken account of his assertion that he is able to make decisions concerning day-to-day matters, such as choosing meals, games and holidays. However, that is a very different matter from making the complex and nuanced decisions required in the conduct of high-value litigation. That distinction was carefully considered by Dr Obinwa and is adopted by the court in reaching a conclusion on this issue. I also acknowledge that the Claimant has confidence in his experienced legal team and considers that he should be free to accept or reject their advice, even where, as he indicated to Dr Obinwa, he might choose to accept a settlement which others would regard as unduly low. I fully accept that a capacitous individual is entitled to make decisions which others may regard as unwise.

Nevertheless, I am persuaded that the evidence demonstrating a lack of litigation capacity is compelling and well-reasoned. Although the Claimant may, with support and appropriate explanation, be able to understand matters when they are broken down into manageable components, the evidence is that he is unable adequately to retain that information. The ability to use and weigh information necessarily requires retention of that information for the purposes of the decision-making process. The evidence establishes that this ability is lacking. That is, of course, through no fault of the Claimant.

Taking all of the evidence into account, I am satisfied, on the balance of probabilities, that the Claimant is unable to use and weigh relevant information as part of the process of making decisions concerning the conduct of this litigation. That inability arises from a combination of his cognitive and psychiatric impairments and satisfies the statutory criteria set out in the Mental Capacity Act 2005. I am further satisfied that the Claimant's inability to use and weigh relevant information is because of those impairments and disturbances in the functioning of his mind and brain.

I have specifically considered whether, with reasonable adjustments and appropriate support, the Claimant would be able to make litigation decisions for himself. The evidence, which I accept, is that despite such support he remains unable reliably to retain, use and weigh the relevant information.

In those circumstances, I conclude that the Claimant lacks capacity to conduct these proceedings. He should therefore continue to be represented by a litigation friend.

I emphasise that this conclusion should not be taken as diminishing the Claimant's ability to make many decisions in his everyday life. The issue before the court is a specific and limited one, namely whether he has capacity to conduct this litigation which is potentially complex and high value. For the reasons set out above, I am satisfied that he does not.