By Pankaj Madan, Barrister, 12 King’s Bench Walk London and Exchange Chambers.
There are some decisions which answer the question before the court. There are others which answer the question practitioners have actually been asking in conference rooms, on trains to court, and over hurried coffees outside the RCJ. Mohammed v Ali [2026] EWHC 401 (KB), falls into the second category.
Anyone who does serious brain injury work will recognise the problem. Capacity is an issue. The medical evidence is not neat. The family evidence may be well meaning but imperfect. There may be surveillance. There may be allegations of exaggeration or worse. A litigation friend is in place, or proposed, or suddenly becomes a difficulty. Then someone says, with apparent common sense, that the capacity question should simply be tried first and everything else can wait.
Mohammed v Ali is a useful reminder that things are rarely so simple. Indeed, the whole point of the decision is that turning litigation capacity into a preliminary issue may create exactly the mess it is supposed to avoid.
The underlying claim was, in every sense, a serious one. The Claimant had suffered very substantial injuries in a road traffic accident, including traumatic brain injury, psychiatric injury, vascular injury, pelvic and hip fractures, and urological damage. Liability had been admitted by the MIB. The case was heading to a 10 day trial on quantum. In most practitioners’ minds, that ought to have meant the usual grind of experts, schedules, surveillance arguments and credibility points, all leading to a trial judge deciding where the truth lay.
Instead, the case went sideways.
Three developments destabilised the trial. First, there was late neuroradiology evidence relating to diffuse axonal injury. Second, the Defendant advanced an allegation of fundamental dishonesty shortly before trial. Third, concerns emerged about the Claimant’s mother, who had been acting as litigation friend, after DWP material suggested that she may not have accurately described his condition and symptoms. The Claimant then applied to remove his mother and substitute his sister, a nurse, before changing course and withdrawing that application on the first day of trial.
At that point, the Recorder took the view that he should hold a live hearing to determine whether the Claimant had litigation capacity. Evidence was called from family members. Experts were called on both sides. Cross examination followed. Time disappeared. The quantum trial did not happen. The Recorder ultimately found that the Claimant had capacity.
If that were the end of the story, the case would still be interesting. But what makes it properly worth reading is what happened next. The Defendant, despite having succeeded on the capacity issue, appealed. Its complaint was not that the Recorder had wrongly found capacity. Its complaint was that the Recorder should never have embarked upon that hearing in the first place.
The case squarely raises a practical question which comes up again and again in catastrophic injury litigation. Where litigation capacity is disputed, should it be carved out and determined first as a preliminary issue? Or should the court take the more pragmatic course of permitting the claim to proceed with a litigation friend in place, leaving any real dispute about capacity to be resolved, if necessary, at trial with the full evidential landscape available?
Mr Justice Ritchie’s answer was clear. On the facts of this case, the Recorder had got the sequence wrong.
The appeal succeeded on the footing that the Recorder had misdirected himself in thinking he could not appoint a substitute litigation friend unless he first determined the Claimant’s litigation capacity. The Judge, Ritchie J, held that the separate live hearing on capacity had been procedurally wrong, unnecessary and expensive, and had been conducted without the full body of evidence bearing on the overlap between capacity and dishonesty. Put shortly, the hearing was an expensive detour.
That conclusion seems to me to be both legally important and practically right.
The temptation to isolate capacity is easy to understand. On paper it has obvious attractions. If there is doubt about whether the claimant can conduct proceedings, surely that ought to be resolved at once. If the medical evidence is tied up with self-reporting and family reporting, and if honesty is in issue, surely the court should sort out whether the claimant is really able to litigate before anyone takes another step.
The problem is that in real litigation, especially in brain injury claims, those issues do not stand in discrete boxes. Capacity is often bound up with credibility. Credibility is often bound up with expert opinion. Expert opinion is often dependent on what the claimant says, what the family says, what the records say, and how all of that sits with surveillance, social media, benefits material and the rest. Once you pull one thread, you do not get a neat little hearing. You get a partial trial, on partial evidence, at the worst possible moment, with all the cost and forensic unfairness that implies.
That, in truth, is the central lesson of Mohammed v Ali. A preliminary issue on litigation capacity may look like case management. Sometimes it is really duplication dressed up as orderliness.
The judgment is also valuable for what it says about litigation friends. Catastrophic and serious injury lawyers have long worked with what is sometimes called the protective litigation friend approach. The label is convenient, but Mr Justice Ritchie was right to treat it with a little caution.
From one angle, it is protective. A litigation friend may protect the claimant by ensuring that proceedings are conducted validly and that a compromise, if reached, can be approved and made binding. It may also protect the defendant, because a settlement approved on that footing is less vulnerable to later attack.
But from another angle, there is a real autonomy point. If a person in fact has capacity, the appointment of a litigation friend is not some benign administrative arrangement. It is someone else taking control of the case. That is not a trivial thing. The Mental Capacity Act starts from a presumption of capacity, and rightly so. Support should be given where possible to enable a person to make their own decisions. We should be careful not to let procedural convenience harden into paternalism.
That is one reason why the judgment feels balanced. It does not treat litigation friends as a harmless fiction. Nor does it treat capacity doubts as an invitation to shut the whole case down and have a mini trial. Instead, it puts the focus where it should be, on sensible progression of the litigation while respecting both protection and autonomy.
The most important doctrinal feature of the judgment is its reliance on Folks v Faizey. Mr Justice Ritchie treated that authority as the key one that should have guided the Recorder, and one cannot read the judgment without thinking that he regarded its absence from the argument below as highly significant, indeed surprising.
The practical effect of Folks is straightforward. The appointment of a litigation friend is ordinarily a protective procedural step. It is not supposed to become an arena for a separate contest unless there is some real reason for that. A claimant may appoint a litigation friend before issue where the evidence supports it and the process is bona fide. After issue, the court may appoint or substitute a litigation friend on much the same practical footing. In the ordinary case, the defendant is not prejudiced by that course and may positively benefit from it. Crucially, the appointment does not finally determine the substantive dispute about capacity between the parties. That issue can remain live and be decided later if it really matters.
That is the bridge the Recorder did not cross. Once the Claimant’s mother had ceased to be a suitable litigation friend, the Recorder treated the court as unable to appoint a substitute without first deciding capacity. Mr Justice Ritchie held that this was the error. The court could and should have appointed the proposed substitute on the available material and left the real dispute about capacity to trial.
The decision therefore restores some much needed proportionality. Too often, one sees interlocutory disputes inflating themselves by claiming to be principled. In truth, many of them are simply arguments about timing, cost and tactical advantage. Mohammed v Ali reminds us that CPR Part 21 exists to facilitate fair litigation, not to generate satellite litigation of its own.
The judgment is equally useful on the limited role of the defendant. That is not to say the defendant is always irrelevant. There may be cases in which a wider determination of capacity carries significant financial consequences, especially where capacity to manage property and affairs is in issue, or where Court of Protection and deputyship questions bear directly on quantum. The judge recognised that.
But ordinary disputes about the appointment or substitution of a litigation friend in personal injury claims are different. In that setting, a defendant will often struggle to identify any real prejudice from the appointment. Indeed, the appointment usually protects the defendant by ensuring the claim is advanced in a procedurally safe way. That is why judicial impatience with over enthusiastic defence opposition in this area is often justified.
There is, I think, a wider cultural point here. Defendants sometimes approach litigation friend applications as if they are early battlegrounds on dishonesty or exaggeration. That is usually a mistake. Suspicion about the family, scepticism about the experts, and complaints about inconsistency are all very familiar features of serious injury litigation. They may be good points. They may be devastating points. But they are generally trial points. They are not, without more, a good reason to turn the litigation friend process into a full dress rehearsal.
The decision also contains a warning for claimant lawyers, though perhaps a gentler one. The claimant’s position had become difficult to follow. The claim was begun without any plea of lack of capacity. Later, his own experts said he lacked litigation capacity and a litigation friend was appointed. Later still, after the Recorder found capacity, the claimant accepted that position and no longer sought a litigation friend, despite the served expert evidence still pointing the other way. The court plainly found that unsatisfactory.
Quite so. Capacity is not just a tactical setting which can be switched on and off depending on what is most convenient that week. If your own experts say your client lacks litigation capacity, that engages professional duties. It also requires consistency of thinking and some courage of analysis. One cannot have all the advantages of the point without the responsibilities that go with it.
For my part, I submit that Mohammed v Ali is a very welcome decision. It does not pretend that capacity disputes are easy. It does not belittle the importance of autonomy. It does not remove the court’s ability to decide capacity where necessary. But it does insist, and rightly, that in the ordinary brain injury case the court should think very carefully before converting litigation capacity into a stand-alone preliminary issue.
The better course will often be the less glamorous one. If there is credible evidence that the claimant may lack litigation capacity, and there is a suitable person willing to act, appoint the litigation friend and get on with the case. Let the trial judge determine the real disputes on the full evidence. Do not allow an interlocutory concern, however sincerely held, to consume the trial itself.
That may sound unexciting. But in personal injury litigation, the unexciting course is quite often the right one. Mohammed v Ali is a useful reminder that sound procedure is not about doing everything first. It is about doing things in the right order.
About the author
Pankaj Madan is a Barrister specialising in catastrophic injury with a specialist interest in brain injury. He acts for both claimants and defendants. He is the author of leading texts on Subtle Brain Injury and Chronic Pain and a recent book on Catastrophic Brain Injury. He practises from Exchange Chambers and 12 King’s Bench Walk. He is President-Elect of the Royal Society of Medicine, Pain Section Council. He is Legal 500 PI Junior of the year 2025.
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