Under Part 21 of the Civil Procedure Rules, it is possible for a person who lacks capacity to be represented in court by a litigation friend so that they can have proper access to justice. In a landmark decision that is of general public importance (Jhuti v Royal Mail Group Limited), the Employment Appeal Tribunal (EAT) has ruled that the right should be extended to proceedings before an Employment Tribunal (ET).
Ms Jhuti had succeeded in automatic unfair dismissal and whistleblowing claims against her former employer, Royal Mail. There was medical evidence that she suffered from post-traumatic stress disorder and a moderate depressive illness, triggered by traumatic experiences that she had endured during her employment.
A further hearing was due to take place before an ET at which the amount of her compensation would be assessed. However, her lawyers argued that, due to her psychiatric problems, she lacked the capacity to conduct the proceedings. The ET, however, refused to appoint a litigation friend on the basis that it was bound by the EAT’s decision in Johnson v Edwardian International Hotels Limited and had no power to do so. Concerned that Ms Jhuti did not have the mental capacity to instruct them, her solicitors submitted an application for reconsideration, but this too was turned down. A month later, a doctor’s report concluded that Ms Jhuti lacked capacity to pursue her claim.
In allowing an appeal against the ET’s decision, the EAT noted that neither the Employment Tribunals Act 1996 nor the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 conferred any express power to appoint a litigation friend and recognised that ETs are creatures of statute and can exercise only those powers that are conferred on them by Parliament. However, the EAT found that the 2013 Rules are wide enough, when read and interpreted in accordance with the common law duty of fairness and/or the strong interpretive obligation under Section 3 of the Human Rights Act 1998 (HRA), to permit ETs to use their case management powers to appoint a litigation friend where a person lacks the capacity to conduct ET proceedings themselves. Otherwise, a litigant who lacks capacity would have no means of accessing justice or achieving a remedy for a legal wrong.
In deciding not to follow the decision in Johnson, the EAT was satisfied that the facts and the issues here were very different from those in the earlier case. Unlike the present case, there was no evidence in that case to justify a finding of incapacity. Furthermore, Johnson was decided under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, which are significantly more prescriptive than the 2013 Rules. It is not apparent that arguments based on the need to deal with parties on an equal footing were addressed in Johnson, nor was any reference made to the common law duty of fairness or the interpretive obligation in Section 3 HRA.
The case was remitted to the same ET for a litigation friend to be appointed.
Because the case raised novel issues of general public importance, the EAT took into account written representations from the Law Society and the Secretary of State for Business, Energy and Industrial Strategy in reaching its decision.