CIVIL PROCEDURE — parties — person under legal incapacity — application to remove plaintiff's tutor — evidence of plaintiff's restored capacity to weigh, evaluate and make decisions about the conduct of litigation — where proceedings are close to conclusion and many of the forensic decisions have already been made — application to remove tutor successful
Quick Take
1The test for whether a party requires a tutor is whether the party is capable of understanding, with the assistance of proper explanation from legal advisers and experts, the issues on which their consent or decision is likely to be necessary in the course of the proceedings, following Masterman-Lister v Brutton and Co as adopted in Rappard v Williams and Stokes v McCourt.
2The relevant inquiry on an application to remove a tutor is not whether the plaintiff can manage her affairs generally, but the more limited question of whether she can weigh, evaluate and make decisions about the conduct of litigation, including decisions about settlement and legal strategy risk — requiring assessment of executive functioning rather than global cognitive abilities.
3The stage proceedings have reached is relevant to the assessment: where proceedings are close to conclusion and many forensic decisions have already been made, the remaining decision-making burden is reduced, which may support a finding that a tutor is no longer required.
