A High Court judge has held that a man with a traumatic brain injury from an M6 collision lacks litigation capacity, and must keep a litigation friend, despite his strong objection.
Key facts
- Who: Claimants whose capacity to conduct a personal injury claim is disputed, and the litigation friends, solicitors and defendants involved
- From: 9 September 2026 (judgment date)
- Source: KDS v EUI Limited [2026] EWHC 2329 (KB)
The High Court (King's Bench Division, Liverpool District Registry) handed down judgment in KDS v EUI Limited [2026] EWHC 2329 (KB) on 9 September 2026. HHJ Howells sat as a Judge of the High Court. An anonymity order is in place.
Background
The claimant, KDS, is now 26. He was injured in a head-on collision on the M6 on 19 November 2022, in which the daughter of his partner and the defendant driver both died. His injuries included a traumatic brain injury.
The claim was issued with a professional litigation friend acting for him under a Certificate of Suitability dated 15 July 2025. No court order appointed the litigation friend. KDS later said he had capacity and applied on 30 October 2025 for the court to decide the issue as a preliminary matter.
The question
Did KDS have capacity to conduct the proceedings and instruct his lawyers directly? Under CPR 21.2, a party who lacks capacity is a protected party and must have a litigation friend. Unless the court orders otherwise, steps taken before a protected party has one are of no effect.
The court applied the Mental Capacity Act 2005. Capacity is presumed, is specific to the decision and the time, and a person is not treated as lacking it simply because they make an unwise decision. The question is decided on the balance of probabilities.
The decision
The judge held that KDS lacks capacity to conduct the proceedings and should continue to be represented by a litigation friend. The application was decided on the papers by agreement. KDS chose not to attend or make direct representations. His solicitors and the litigation friend took a neutral position, and the defendant said the presumption of capacity had to be rebutted.
The reasoning
The judge relied mainly on expert evidence. One neuropsychiatrist first thought KDS had capacity but changed his view after receiving more information. The judge found the later opinion more reliable. A second neuropsychiatrist, instructed by court direction solely on capacity, assessed KDS over two days and spoke to his mother. She concluded he cannot retain, use and weigh the information needed for litigation decisions, even with support. The judge found her evidence "clear, cogent and robust".
The judge accepted that KDS can make everyday decisions, but distinguished those from the complex decisions in high-value litigation. The judge noted that the litigation itself is a significant stressor contributing to his current lack of capacity.
His lawyers are expected to keep capacity under review. That does not require further medical evidence unless there is reason to think his presentation has changed.
What this means for injury claimants and their families
- Where a claimant disputes a finding that they lack capacity, the court can investigate the issue itself, and the claimant must have a way to put their views to it.
- Capacity is assessed for the specific decision. Being able to manage daily life does not settle whether someone can run a complex claim.
- Medical evidence that considers support and adjustments, and information from family members, can carry weight.
- A finding of this kind applies to the litigation only, and is kept under review.
- Anyone facing a dispute about capacity or a litigation friend should take legal advice before steps or deadlines in the claim pass.
Sources
- KDS v EUI Limited [2026] EWHC 2329 (KB), High Court (King's Bench Division), 9 September 2026: https://caselaw.nationalarchives.gov.uk/ewhc/kb/2026/2329