News.

In KDS v EUI Limited [2026] EWHC 2329 (KB), handed down on 9 September 2026 in the Liverpool District Registry, HHJ Howells decided a preliminary issue in a high-value personal injury claim. The 26-year-old claimant had suffered a traumatic brain injury in a head-on collision on the M6 in November 2022. He argued strongly that he had capacity to conduct the proceedings himself. The experts did not agree with each other at first. A consultant neurologist expressed no view on capacity. A consultant clinical neuropsychologist thought the claimant probably lacked litigation capacity but deferred to a psychiatrist, preferably a neuropsychiatrist. The first neuropsychiatrist initially concluded that the claimant had capacity, then changed his opinion after receiving further information.

The court therefore directed an independent neuropsychiatric opinion limited to litigation capacity. That assessment took place over two days, included an interview with the claimant’s mother, and involved careful review of the GP and hospital records. The expert explained that the proceedings themselves triggered the claimant’s difficulties because they repeatedly exposed him to the trauma underlying the claim. The judge found her evidence clear, cogent and robust, and preferred the first neuropsychiatrist’s later opinion because it was based on fuller evidence. He concluded that the claimant lacked capacity to conduct the proceedings and should continue to act through a litigation friend.

The judgment is a useful model for capacity reports in brain injury litigation. The court valued time spent with the claimant, collateral history from family, and explicit application of the functional test in the Mental Capacity Act 2005. It also shows that an expert who changes an opinion needs to explain clearly why.