R (Percival) v Police and Crime Commissioner for Nottinghamshire [2022] EWHC 3544 (Admin)

Litigation capacity assessed by judge This case concerned whether the claimant had capacity to conduct claims for judicial review. The judge made his decision by reference to the Equal Treatment Bench Book, from speaking to the claimant, and considering the conduct of proceedings so far, and concluded: "Whilst it has been emphasised that judges should be slow to form a view as to capacity without the benefit of any external expertise, I do not consider that anything is likely to be achieved, other than further significant delay, by seeking to contact the Official Solicitor to obtain updated medical evidence and in circumstances where, despite HHJ Gosnell's earlier invitation, the Official Solicitor has still not been actively engaged. Having today listened to Professor Percival and having considered the manner in which he has conducted the judicial review proceedings to date over a prolonged period of time, I am satisfied, on the balance of probabilities and applying the presumption of capacity, that Professor Percival does indeed have capacity to conduct these proceedings when applying the appropriate legal test as set out in sections 2 and 3 of the 2005 Act. In particular, I am satisfied that Professor Percival is able at least in these judicial review proceedings to understand, retain, use and weigh in the balance relevant information for making decisions in relation to these claims and to communicate those decisions both to the Court and to the defendants."