WHEN DOES A LITIGANT HAVE CAPACITY? AVOIDING CIRCULAR ARGUMENTS: THE NEED FOR LEGAL ADVICE IS NOT A DETERMINING FACTOR

There is an interesting discussion of capacity to litigate in the judgment of Mr Justice Mostyn in Richardson-Ruhan v Ruhan & Ors [2021] EWFC 6. It is also worth remarking on the judge’s comments on how the expert’s evidence in this case was “a model of how expert evidence should be given.”

“… the capacity to conduct proceedings cannot depend on whether the party receives no legal advice, or good legal advice or bad legal advice. If the party would be capable of making the necessary decisions with the benefit of advice then she has capacity whether or not she actually has the benefit of that advice.”

THE CASE

The judge was considering the position of the former wife in a long running matrimonial dispute, in particular whether she had capacity to litigate. The former wife could not fully participate in proceedings without legal representation. The judge held that the need for legal representation did not mean that she lacked capacity.  The justice of the case was best served by granting an adjournment in order that new lawyers could be properly instructed.

THE JUDGMENT ON CAPACITY
    1. Sections 2 and 3 of the Mental Capacity Act 2005 provide:
2 People who lack capacity
(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack of capacity cannot be established merely by reference to:
(a) a person’s age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.
….
3 Inability to make decisions
(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable:
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of—
(a) deciding one way or another, or
(b) failing to make the decision. …
    1. It is stated in Court of Protection Practice 2020 at 1.340, rightly in my opinion, that the analytical process when determining a question of capacity is in three stages as follows:
(1) Is the person unable to make a decision? If yes:
(2) Is there an impairment or disturbance in the functioning of the person’s mind or brain? If yes;
(3) Is the person’s inability to make the decision because of the identified impairment or disturbance?
    1. Dr Bell gave oral evidence. He was a very good witness, whose evidence was clear and succinct. He answered the questions that were put to him directly without any embroidery or rhetoric. It was a model of how expert evidence should be given. He was taken to sections 2 and 3 of the Mental Capacity Act 2005 and asked to give his opinion as to the wife’s capacity as defined by the statute. He was asked to consider a number of hypothetical analogues such as making a will, negotiating damages after a personal injury, and buying a house with restrictive covenants and other title issues. He was then asked to consider the husband’s variation applications with which the wife was to be confronted as a litigant in person on 21 January 2021. His evidence was consistent and clear. In each of these scenarios he was of the view that the wife would have capacity to make the relevant decisions if, and only if, she had the benefit of legal advice and representation. If she did not have legal advice then he did not think that she would be capable of navigating the legal complexities in each scenario. He considered that acting alone she would be disabled by her medical condition from being able to make the necessary decisions.
    1. The classic test for capacity to conduct litigation is found in the decision of the Court of Appeal in Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889[2003] 1 WLR 1511. At [75] Chadwick LJ held:
“…the test to be applied….is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisors and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law whether substantive or procedure should require the imposition of a … litigation friend.”
    1. This decision was given under the common law regime which predated the enactment of the 2005 Act. However, there is consensus that it describes the correct test, or standard, applicable under the Act.
    1. In this case Mr Walker has confirmed that there is no possibility of completing the engagement of the wife’s new legal team in time for her to be represented next Thursday. Therefore, she would be acting in person and on the evidence of Dr Bell would be incapable of making rational decisions or dealing with complex legal issues.
    1. A literal interpretation of the test propounded by Chadwick LJ would suggest that in the absence of legal advice and representation she would be legally incapacitated and the court would be obliged to appoint a litigation friend. Such an interpretation is replete with problems.
    1. First, it creates circular reasoning. If the lack of representation generates incapacity, and that incapacity is addressed by the appointment of a litigation friend, and that litigation friend secures representation, then the incapacity disappears, and the appointment of the litigation friend comes to an end, leading, possibly, to the wife once again being unrepresented.
    1. Second, it means that in relation to the capacity to conduct litigation, that capacity does not have an absolute quantum, but rather varies depending on the presence, or otherwise, of legal advice and representation. If this were so the quantum would further vary, surely, in response to the quality of legal advice, which is very difficult factor to investigate.
    1. Therefore, Mr Sear and Mr Lord QC argue that Chadwick LJ’s dictum should not be read literally. Rather, it should be read to mean that if the party is capable of understanding with the assistance of proper explanation from legal advisers the issues on which her consent or decision is likely to be necessary in the course of the proceedings, then she will have the requisite capacity, whether or not she actually receives such assistance.
    1. This reading is brutally pragmatic because it may have the effect, as here, of leaving someone who is actually incapacitated representing herself alone, in what may transpire to be a damaging and traumatic experience. However, that worrying scenario is, as Mr Lord QC rightly says, addressed by granting an adjournment in order for representation to be secured, rather than by the protracted and elaborate procedure of appointing a litigation friend.
    1. The interpretation espoused by Mr Sear and Mr Lord QC is consistent with the judgment of Baroness Hale DPSC in Dunhill v Burgin [2014] UKSC 18[2014] 1 WLR 933 at [17]:
“Equally, of course, those words [of Chadwick LJ at [75]] could be read in the opposite sense, to refer to the advice which the case required rather than the advice which the case in fact received. In truth, such judicial statements, made in the context of a different issue from that with which we are concerned, are of little assistance. But they serve to reinforce the point that, on the defendant’s argument, the claimant’s capacity would depend on whether she had received good advice, bad advice or no advice at all. If she had received good advice or if she had received no advice at all but brought her claim as a litigant in person, then she would lack the capacity to make the decisions which her claim required of her. But if, as in this case, she received bad advice, she possessed the capacity to make the decisions required of her as a result of that bad advice. This cannot be right.”
    1. Thus, the capacity to conduct proceedings cannot depend on whether the party receives no legal advice, or good legal advice or bad legal advice. If the party would be capable of making the necessary decisions with the benefit of advice then she has capacity whether or not she actually has the benefit of that advice.
    1. This interpretation is also consistent with section 3(2) of the Act, which provides that
“A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means)” (my emphasis).
    1. The use of the conjunction “if” presenting the conditional clause that follows clearly means that the explanation in question does not actually need to happen in order for capacity to be found. If the draftsman had intended otherwise he would have used “where” or “provided that”. So, the provision may be held to be satisfied even where the person flatly refuses to receive an appropriately simple explanation of the information, provided that there was evidence that had she received it, she would have understood it.
    1. It is true that section 3(2) is only concerned with the ability to understand information relevant to a decision, when under section 3(1) there is more to making a decision than that. However, if the wife is deemed to be able to understand the relevant information if it were presented appropriately to her by advisers, and therefore by reference to that factor, has capacity, then it is hard to see how the other factors within section 3(1) could lead to a different conclusion.
    1. I therefore conclude that the wife is to be treated as having the capacity to make the necessary decisions to deal with the forthcoming hearing of the husband’s variation applications. The three-stage analysis referred to at paragraph 21 above ends at the first stage. I declare, accordingly, that the wife retains capacity to conduct this litigation and specifically to conduct the husband’s variation applications due to be heard on Thursday, 21 January 2021.
    1. Should the hearing of the husband’s variation applications be adjourned? Both Mr Sear and Mr Lord QC rightly recognise that the material advanced as to the wife’s health, and particularly, and most importantly, the report and oral evidence from Dr Bell, form a sound basis for an application to adjourn next Thursday’s hearing.
    1. In Levy v Ellis-Carr & Ors [2012] EWHC 63 (Ch) Norris J laid down at [36] the evidential requirements which should be met should a medical reason for an adjournment be advanced: the evidence should identify the medical attendant and give details of his familiarity with the party’s medical condition (detailing all recent consultations); should identify with particularity what the patient’s medical condition is and the features of that condition which (in the medical attendant’s opinion) prevent participation in the trial process; should provide a reasoned prognosis; and should give the court some confidence that what is being expressed is an independent opinion after a proper examinationLevy v Ellis-Carr & Ors was approved by the Court of Appeal in Forrester Ketley v Brent [2012] EWCA Civ 324, and in Simou v Salliss & Ors [2017] EWCA Civ 312.
    1. Mr Sear and Mr Lord QC both accept that these criteria for the grant of an adjournment on medical grounds are met. However, Mr Sear asks for certain consequential orders should the adjournment be granted.
  1. I grant the adjournment. It would be singularly unfair and potentially traumatic and damaging to the wife’s core health status were the case to proceed on Thursday. The husband’s variation applications will be re-fixed on a date convenient to counsel on the first open date on or after 15 February 2021. This deferral should allow sufficient time to enable the wife’s new legal team to read into the case and to prepare for the hearing appropriately.