APPLICANT FAILS TO SATISFY COURT THAT LITIGANT LACKED CAPACITY: HIGH COURT DECISION

In  Greetham v Greetham [2021] EWHC 998 (QB) Mr Justice Soole rejected an application in relation the appointment of a litigation friend. The applicant failed to prove that the litigant lacked capacity. Further the court did not accept that the proposed litigation friend would have been an appropriate appointement in any event.

THE CASE

The judge was considering an application that a litigation friend be appointed in a case that had a long procedural history.  The judge was not persuaded that the evidence showed that the litigant lacked capacity, nor that the proposed litigation friend was suitable. The reporting doctors had not been given a full an daccurate history.

THE JUDGMENT

Conclusion on capacity

1. 1. For the reasons essentially advanced by Mr Stuart, and applying the balance of probabilities, I am quite unpersuaded that the presumption of capacity is displaced.

1. 1. My principal reason for this conclusion lies in the wholesale failure to provide Ms Thornton (and previously Mr Ofori) with any significant information about this litigation, its issues and the history of its conduct. The stark disparity between that detail and the information provided speaks for itself.

1. 1. In consequence Ms Thornton’s reports (and in particular the second and third reports concerning capacity to litigate) have been prepared without knowledge of e.g., the fact and content of the instructions given by Andrew and accepted by two successive firms of solicitors and by Counsel between 2019 and the week before the hearing of 17 February 2020; the agreement between the parties as to the identity of the partnership assets and the principle of equal division; the termination of the second solicitors’ retainer before that hearing because of a dispute over fees; Andrew’s application in person to set aside the order of 17 February; his representation by Counsel (Ms McDonnell) at the hearing on 5 March and her confirmation to the Court of satisfaction with her instructions; the successive further appeals, applications and letters to the Court in Andrew’s name and signed by him; the instructions to Counsel to draft Andrew’s appeal against the Order of 5 March 2020; his representation by Counsel (Dr Joseph) at the successive hearings between September 2020 and January 2021 (the latter postdating Ms Thornton’s reports); and within those hearings the settlement of the matrimonial proceedings, the admissions of breaches of the enforcement order and Counsel’s various statements as to satisfaction with her instructions and his capacity. Furthermore, insofar as Ms Thornton or Mr Ofori have taken into account instructions given to them about the partnership dispute and advice received (see e.g. paragraphs 36 and 79 above), this has likewise been in ignorance of all this relevant information.

1. 1. Of course, the fact that successive solicitors and Counsel have been satisfied as to Andrew’s litigation capacity is not determinative of that issue. No more is it determinative that detailed letters, applications and appeals have been submitted to the Court over Andrew’s name and signature. However these are all matters of obvious relevance which any useful assessment of litigation capacity needs to take into account. Thus if, e.g., it is the case that Richard and/or the unidentified intermediary drafted the various documents submitted and signed by Andrew and have been the source of instructions to Counsel, then the assessment needs to consider the basis on which they felt able to draft and give instructions on his behalf; and if necessary to seek further evidence and explanation for that purpose.

1. 1. I have of course taken particular account of the various references to medical notes and records in the reports of Ms Thornton and Mr Ofori; to the result of the Montreal Cognitive Assessment carried out by Ms Thornton; and to the conclusions expressed by each of them on the issue of litigation capacity. However these are quite insufficient in the absence of the full information necessary for any proper assessment. In my judgment the reports of Ms Thornton (and Mr Ofori) provide no useful assistance for the Court on the issue of litigation capacity.

1. 1. As to the medical position I also note that Ms Thornton has no medical qualification; and that the emphasis placed in her reports on the suggested continuing effect of the 1971 road traffic accident is little more than assertion.

1. 1. For similar reasons, the non-expert evidence provides no useful support for a finding of litigation incapacity.

1. 1. Thus Richard’s various assertions of his brother’s litigation incapacity can be given no useful weight in circumstances where, by his own account and as reaffirmed in Dr Joseph’s submissions, he has been the driving force in the conduct of proceedings on behalf of Andrew since shortly after the 17 February 2020 hearing. At the very least there would need to be some coherent explanation as to how he reconciles his conduct of the proceedings throughout this period with his contention that Andrew has at all times lacked the necessary capacity.

1. 1. The evidence of Christina Myland takes the matter no further; nor does Andrew’s January 2020 written authority to his partner demonstrate that he lacks the capacity to litigate or otherwise provide useful support for that contention.

1. 1. As to the various and disputed allegations of fraud and misappropriation of funds to which much of the supporting evidence has been directed, this provides no useful assistance on the issue of capacity. Further, as Mr Stuart submitted, if and to the extent that Andrew wishes to pursue these allegations he can do so within the framework of the order for accounts and enquiries in respect of partnership dealings and transactions.

1. 1. Accordingly, and having reviewed and considered all the evidence individually and collectively, I am not persuaded on the balance of probabilities that the presumption of capacity in respect of the conduct of this litigation has been displaced. It follows that on the basis of current evidence Andrew is not a protected party.

1. 1. That is sufficient to dispose of the application. However, in the alternative to that conclusion on capacity, I also consider whether Richard has satisfied the conditions for his appointment as litigation friend : CPR 21.4(3)(a)-(c).

CPR 21.4(3)

1. 1. Condition (a) is that the applicant ‘can fairly and competently conduct proceedings on behalf of the child or protected party’. Dr Joseph submits that Richard satisfies this condition.

1. 1. For the reasons essentially advanced by Mr Stuart, I do not agree.

1. 1. First, the history of Richard’s conduct of litigation on behalf of Andrew since the 17 February 2020 Order does not demonstrate an ability to conduct proceedings competently. On the contrary the period since that date has involved a succession of unmeritorious applications and appeals which have duly failed, with the consequence that Andrew has incurred further repeated costs orders. Excluding the orders made on 17 February, these total £64,648.

1. 1. Secondly, the implication from all the evidence is that Richard is doing nothing to encourage his brother to complete compliance with the orders made against him on 17 February 2020 and reinforced by the order of 25 September 2020. When I raised the matter of compliance with Dr Joseph, I was given no reassurance on the point. Thus I was not told e.g. that Richard had been endeavouring unsuccessfully to persuade his brother to comply. It would be central to the duty of a litigation friend to do all that he can to encourage immediate compliance. Nothing I have heard suggests that Richard as litigation friend presently intends to give any such encouragement.

1. 1. Thirdly, Richard’s failure to provide Ms Thornton (and previously Mr Ofori) with highly relevant information about the history and conduct of this litigation for the purpose of the preparation of their reports is, in my judgment, a further pointer against his suitability for the fair and competent conduct of litigation.

1. 1. Fourthly, the adverse effect of Richard’s appointment would be visited not only on Andrew but also on Thomas, who has been faced with continuing costly and unmeritorious applications. No part of his costs orders against Andrew had been met. In any event, costs orders rarely provide a full indemnity for the successful party; and the burden of this continuing litigation on his family and business life is evidently very substantial.

1. 1. I accept Mr Stuart’s contention that, even if incapacity were established, Richard Greetham fails to meet the condition which would require him to conduct proceedings on behalf of Andrew fairly and competently. In my judgment he would be most unsuitable as litigation friend.

1. 1. There is no dispute that condition (b) is satisfied.

1. 1. As to condition (c), in his Certificate of Suitability of litigation friend dated 21 January 2021, Richard has deleted the undertaking in respect of the payment of costs. This is on the basis, as condition (c) and the sidenote to the certificate indicate, that this is deleted where acting for a defendant. In this case the ultimate form of the partnership proceedings has placed Thomas as claimant and Andrew as defendant: see e.g. the Order of 17.2.20. However if the intention to bring fresh and wide-ranging claims of fraud, i.e. in substance acting as claimant, in my judgment it would have been necessary for an undertaking in costs to be given.

Conclusion

1. 1. Richard Greetham’s application dated 21 January 2021 for his appointment as litigation friend must be dismissed. It follows that the further applications brought by him within that application document must also be dismissed.

1. His earlier application dated 21 December 2020 is a curious hybrid in that it seeks ‘An order to be appointed as a Litigation friend pursuant CPR r.21.2(1), without a Court Order’. This confuses the procedure for the Court to appoint a litigation friend (CPR 21.6) with the procedure for becoming a litigation friend without a court order (CPR 21.5). Given my conclusion on capacity there is no basis to deploy the latter procedure. The application must also be dismissed.