Kenneth Johnston's case highlights capacity complexities

The recent judgment in the case of Kenneth Johnston v Financial Ombudsman Service has brought to the fore significant issues regarding the capacity of individuals in legal proceedings, especially in the context of mental health. Delivered on 8 May 2025 by the Court of Appeal (Civil Division), the ruling centred on Johnston's appeals after the dismissal of his claims against the Financial Ombudsman Service (FOS). At the heart of these appeals were serious allegations that the FOS failed to make reasonable accommodations for his mental health struggles, as required under the Equality Act 2010.

This complex appeal arose from Mr. Johnston's earlier claims of discrimination due to his mental health disabilities, including a history of depression and severe anxiety. He contended that he required statutory protections throughout the legal process, asserting that the FOS's inability to make reasonable adjustments impeded his capacity to engage meaningfully in his case, thereby violating his rights as a disabled individual.

Central to the court's analysis was the question of Mr. Johnston's capacity during the relevant periods. Initially, it was found that he could not effectively conduct proceedings without the assistance of a litigation friend, who is mandated by law to support individuals under such circumstances. The legal discussion drew upon the Mental Capacity Act 2005 and the Civil Procedure Rules (CPR), which outline the rights of parties deemed protected under these laws.

The judges examined comprehensive evidence related to Mr. Johnston’s mental health over the years, incorporating various psychiatric assessments. A key evaluation from Dr. Attavar stated that Mr. Johnston had lacked the capacity to conduct legal proceedings independently since 2010. However, this evaluation faced challenges from more recent assessments indicating that while reasonable adjustments were necessary, Mr. Johnston was capable of instructing legal representation.

The intricacies of Johnston's case arose from the convergence of his mental health issues and the procedural expectations of litigation. The court closely considered whether prior hearings adequately supported his needs, particularly since he appeared without a litigation friend. It was argued that the lack of such support significantly limited his ability to present his claims, ultimately influencing the court’s exploration of the capacity question.

In the end, the Court of Appeal ruled against Mr. Johnston, concluding that he had not convincingly demonstrated a lack of capacity at any relevant time during the proceedings. The judges emphasised that the presumption of capacity is a fundamental tenet within legal processes and noted that the burden of proof to counter this presumption had not been fulfilled. They further asserted that while reasonable adjustments are vital for the full participation of disabled litigants, the evidence did not adequately showcase systemic negligence by the FOS.

Moreover, the judges highlighted essential procedural aspects, underscoring the significance of properly articulating cases while also addressing the implications of statutory immunities for public bodies like the FOS. This ruling enhances the legal profession’s comprehension of mental capacity, clarifying that judicial evaluations in this domain must encompass a variety of factors, including unique case details, mental health assessments, and legal stipulations.

Ultimately, Mr. Johnston’s case serves as a crucial reminder of the delicate balance required in legal matters involving individuals facing mental health challenges. It prompts vital conversations about the limits of agency, the role of representation, and the protections available to those embroiled in the complexities of litigation against established institutions. The outcome highlights the ongoing need for advocacy and clarity regarding the legal obligations to support vulnerable parties in securing equitable access to justice

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