Litigation Capacity: Revisited by the Court of Appeal and Cout of Protection

Sam Karim KC and Sophie Hurst acted for Sunderland City Council in the recent case of MacPherson v Sunderland City Council [2025] EWCOP 18 (T3). View the judgment here: https://www.bailii.org/ew/cases/EWCOP/2025/18.html

Following a referral from the Court of Appeal in December 2024, in which Sam Karim KC and Sophie Hurst also acted for Sunderland City Council (see MacPherson v Sunderland City Council [2024] EWCA Civ 157 https://www.bailii.org/ew/cases/EWCA/Civ/2024/1579.html) this matter came before Mrs Justice Theis DBE, Vice President of the Court of Protection, for a determination of whether Ms Macpherson has capacity to conduct her appeal and whether she had capacity in January 2024 in relation to contempt proceedings.

Having heard live evidence from an independent expert, from Ms Macpherson directly and considering written submissions on behalf of Sunderland City Council, the Official Solicitor and Ms Macpherson, as well as supplementary submissions in light of the Court of Appeal’s judgement in Johnston v Financial Ombudsman Service [2025] EWCA Civ 551, Mrs Justice Theis DBE agreed with Sunderland City Council and found that the presumption of capacity had not been rebutted for either question and that Ms Macpherson had capacity to conduct the ongoing appeal and had capacity to conduct the contempt proceedings in January 2024. 

The judgment is significant for various reasons but including (1) outlining the key principles governing assessments of capacity for the Court of Protection, (2) it highlights the importance of not conflating a party’s behaviour and strongly held views as evidence of a lack of capacity, (3) the importance of not over emphasising the protection prerogative, and (4) considers the challenges of paper-based only assessment, as well as retrospective assessments of capacity. 

Sam Karim KC and Sophie Hurst will be joined by Sarah Jackson, Director at EMG Solicitors and Dr Christopher Ince, Consultant Psychiatrist to discuss the decision at a virtual bitesize webinar which will take place on 26 June 2025. Book your place now using the link below:

“Current and retrospective litigation capacity: revisited by the Court of Appeal and Court of Protection” –