can an assessment of a claimant’s capacity to litigate be used as a means of discrediting their evidence?

No held the Court of Appeal in Royal Bank of Scotland v AB.

AB was employed by RBS from August 2008 to May 2014. On her way to her first day of work (in August 2008) AB was knocked down by a car and suffered significant injuries. She was off work for two months. The injuries caused AB pain throughout the duration of her employment which affected her ability to work. AB later suffered from a mental illness. AB’s physical and mental conditions amounted to a disability for the purposes of the Equality Act 2010. AB resigned in May 2014 when off from work with stress. AB was successful in her claims of unfair dismissal and disability discrimination at the Employment Tribunal.  

A psychiatric report was prepared on behalf AB for the remedies hearing. This report concluded that AB showed “severe signs and symptoms of multiple psychiatric disorders, namely severe depression, anxiety and conversion disorders as well as psychosis”; and (b) the “Tribunal and discrimination are the primary causes of the current presentation” and that AB was unable to work and would require on-going, 24-hour care. The damages claimed by AB were significant and the largest element was for cost of future care and assistance at £9.9 million. A psychiatric report prepared on behalf of RBS disputed, amongst other things, the cause of the injury. RBS believed that AB had grossly exaggerated her claim.

RBS made an application to the ET requiring an assessment of whether AB had capacity to conduct proceedings as a result of the way she presented when giving evidence, arguing that if she did not have capacity, then a litigation friend should be appointed to conduct the proceedings on AB’s behalf. The ET held that no evidence was presented to support the fact that AB lacked capacity and refused to grant the application referring to the presumption in section 1(2) of the Mental Capacity Act 2005 that a person is to be assumed to have capacity “unless it is established that he lacks capacity”. The ET also rejected RBS’s application for reconsideration (despite it having medical evidence to suggest that AB did show signs her lack capacity at the time of giving evidence). 

RBS appealed to the Employment Appeal Tribunal (EAT) and later to the Court of Appeal (CA) on grounds that the ET had erred in failing to reconsider its decision not to adjourn the proceedings pending an assessment of AB’s capacity. RBS asked that the matter be remitted to the ET on the basis that either 1) AB’s capacity invalidated the ET proceedings or 2) the assessment might have provided RBS evidence that AB was exaggerating her symptoms (which would ultimately decrease the amount AB would have been awarded).  

The CA, agreeing with the EAT, held that the ET should have adjourned the proceedings to carry out an assessment of AB’s capacity. However, both courts refused to remit the matter to the ET. The EAT noted that the purpose of an assessment of capacity to litigate is not to aid one party, the purpose is to determine whether or not the litigation could or should proceed.  Lady Justice Macur, giving the leading judgment in the CA, noted that there was good reason to have required an assessment of AB’s capacity however “an attempt to seek an assessment of capacity as a means of seeking a forensic opportunity to further explore credibility issues is tantamount to an abuse of process”.

You can read the full judgment here.

This blog was written by Joanne Sinclair, Trainee, didlaw.