England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
CARDIFF DISTRICT REGISTRY
His Honour Judge Seys Llewellyn QC
Claim no: 8CF30085

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/04/2014

Lord Justice Richards :

1. This is an application by Mr Peter Lewis for permission to appeal against an order of HHJ Seys Llewellyn QC dated 6 June 2012 in a case concerning wills. The deceased, Mr Kenneth Lewis, had executed a will in 2004 in which he left his residuary estate in equal shares to his two sons, Peter and David. In 2006 he revoked the 2004 will and executed a new will leaving his residuary estate to David alone, thereby disinheriting Peter. Following the death of Kenneth Lewis, Peter disputed the validity of the 2006 will, contending that it had been procured by David by undue influence and/or fraud. David issued proceedings against Peter to determine the issue. In a judgment handed down on 6 June 2012 following a long drawn-out trial, Judge Seys Llewellyn rejected Peter's case and pronounced in favour of the validity of the 2006 will as against the 2004 will.
2. The issue raised by the application for permission to appeal concerns Peter's capacity to conduct the proceedings below. It arises out of the fact that Peter suffers from Asperger's syndrome and associated cognitive, social and communication difficulties. The specific disadvantages to which this condition gives rise in the conduct of litigation are set out in some detail in an earlier judgment of Judge Seys Llewellyn, dated 8 November 2011, to which I will make further reference in a moment.
3. The issue of capacity arose in the following way. In the earlier stages of the proceedings Peter was in receipt of legal aid and was represented by solicitors. In May 2011, at the invitation of those representing Peter and on the basis of a written report dated 4 March 2011 by Dr Jonathan Jones, a clinical psychologist, the judge ordered that the Official Solicitor be appointed Peter's litigation friend for the purpose of the proceedings. Subsequently, however, Peter's public funding was withdrawn and we are told that the Official Solicitor was not willing to continue to act as litigation friend without funding. The question then arose whether Peter could continue as an unrepresented litigant without a litigation friend.
4. In these changed circumstances the judge decided to revisit the issue of Peter's capacity. He formed the view that it was essential to hear evidence direct from Dr Jonathan Jones and for that purpose he made arrangements for Dr Jones to be called as an expert witness at the Court Service's expense. Having heard that evidence, he gave judgment on the issue on 8 November 2011. For reasons set out at length in that judgment, he concluded that Peter did have capacity to conduct the proceedings. He said that he would have reached that conclusion on the evidence before him even from a neutral starting point; but he based his decision on a finding that the statutory assumption in section 1 of the Mental Capacity Act 2005 ("A person must be assumed to have capacity unless it is established that he lacks capacity") had not been displaced.
5. The judge also referred in his judgment of 8 November 2011 to the special measures he had taken and would take to protect Peter's position in the proceedings and enable Peter's case to be fairly tried. Those measures are explained more fully in the judgment of 6 June 2012. They included the provision of video link facilities for Peter so that he did not have to be in the courtroom; the staging of the witness evidence and the provision of transcripts so as to give Peter time to consider the evidence and what questions to put to the witnesses; the putting of searching questions to witnesses by the judge himself on Peter's behalf; and a direction that closing submissions be in writing, with submissions on behalf of the claimant to come first. The judge was satisfied that the overall effect of the measures taken was to ensure that the case was fairly and justly tried.
6. Looking at the matter in general terms, it is clear that the judge approached both the issue of capacity and the conduct of the trial itself with great care and fairness to Peter, whilst at the same time keeping firmly in mind the need to ensure justice for both parties, not for Peter alone.
7. Peter, however, applies for permission to appeal on three grounds: (1) that the judge erred in law when permitting the proceedings to continue without a litigation friend; (2) that he erred in law in calling an expert witness to provide oral evidence in circumstances where Peter had earlier been ruled to lack capacity and was representing himself in person; and (3) that the decision to permit the matter to proceed without a litigation friend was unlawful as there was no evidence that Peter was capable of managing or administering his own affairs or conducting the proceedings.
8. Peter did not lodge a skeleton argument in support of his application for permission to appeal. He argued in correspondence that pursuant to the Equality Act 2010 the Court Service was under a duty to make reasonable adjustments in the light of his disability, and he requested in particular the appointment of a specialist advocate to assist him and act as a litigation friend.
9. In written directions given on 16 December 2013, Rimer LJ referred to the difficulties concerning representation for Peter, stating that recourse to the Official Solicitor was not realistic and that it was not appropriate to direct the appointment by the Court Service of an advocate to represent Peter or act as his litigation friend. Rimer LJ took the view that the complications of the case required an oral hearing at which the court could consider what further directions it should give for the disposal of the application. He said that the hearing should be attended by Peter himself and be on notice to David's solicitors, whose assistance would be welcome but who were not directed to serve a skeleton argument or to instruct counsel for the hearing.
10. Pursuant to those directions the matter was listed for hearing before us on 27 March 2014. At that hearing there was no appearance by or representation on behalf of David, but Peter attended in person, with the invaluable support of a representative of the Personal Support Unit. Peter addressed us at some length on his difficulties and spelled out the nature of his case. He also handed in a substantial number of additional documents. We decided to reserve judgment in order to ensure that the documents handed in could be considered by us after the hearing and taken properly into account. We explained to Peter that we would then decide whether any further directions were needed or whether we should proceed to a decision on the application for permission, in which case we would give that decision and the reasons for it in our reserved judgment.
11. In the event, having considered what Peter said at the hearing and all the documentation now available to us, I am satisfied that (1) we should proceed now to a decision on the application for permission to appeal, and (2) permission should be refused.
12. So far as procedure is concerned, I do not think that anything further can sensibly be done to assist Peter. The court has before it several expert reports on Peter's condition, and their message is underlined by various extracts that Peter has set out in the additional documents handed in at the hearing. It is not practicable to secure the appointment of legal representation or a litigation friend for him. He has been given a full and fair opportunity to present his case. In assessing that case, due allowance can and should be made for the difficulties to which he is subject, including the "hidden" nature of many of those difficulties. I emphasise that, because it is important not to be misled by the fact that Peter presented in court as an articulate man with the ability to communicate reasonably effectively. I note, for example, that Dr Robertson's report, referred to further below, states that Peter's condition rendered him so inflexible that he was unable to see the wood for the trees in respect of his ability to attend to and understand information; rendered him unable to consider the perspectives of others in weighing up relevant material; caused him to become so anxious that he was unable to weigh relevant matters or even on occasion to attend court; and caused him to be unable to consider the relative advantages and disadvantages of deciding one way or another. Taking all that into account, I consider there to be no obstacle to moving now to a decision on the grant or refusal of permission.
13. There is of course a procedural "Catch 22" about the application. Peter says that he lacks the capacity to conduct legal proceedings; but if that is right, it is not open to him to make the application without a litigation friend to conduct the proceedings on his behalf. I prefer, however, to put that technicality on one side and to examine whether the application has substantive merit.
14. The first difficulty about the application for permission is that, as Rimer LJ pointed out in his written directions, it is many months out of time. The ruling on capacity was dated 8 November 2011, whereas the application for permission to appeal was not made until 27 June 2012 and was directed then to the judge's final order of 6 June 2012. In other words, Peter allowed the trial to proceed on the basis of the judge's ruling on capacity, and it was only after losing the substantive case that he turned round and sought to challenge the ruling on capacity. No grounds have been advanced for an extension of time and I am not satisfied that any good grounds exist.
15. In any event, however, I do not accept that the judge fell even arguably into error either in adopting the procedure he did in order to determine the question of capacity or in reaching his judgment on that issue in the light of the evidence before him. As to the procedure he adopted, he was fully justified in securing the attendance of Dr Jones in order to hear oral evidence from him. As he said in his ruling of 8 November 2011, Dr Jones's written report of 4 March 2011 (on the basis of which the original order had been made in May 2011) did not expressly address the statutory criteria under section 3 of the Mental Capacity Act 2005; and it was plainly open to the judge to decide that exploration of those criteria in oral evidence was essential for a proper review of the position in the light of circumstances as they existed in November 2011. As to the ruling itself, the judge went through each of the statutory criteria in turn, summarising the evidence he had heard. He also looked at the overall picture. He directed himself correctly and reached a conclusion that was reasonably open to him on the evidence.
16. In support of his present application Peter relies heavily on what happened in unrelated possession proceedings brought against him by Carmarthenshire County Council. A possession order was made in those proceedings but he was given permission to appeal on the ground that the judge had not expressly considered the question of capacity although two specialist assessments concerning Peter's disability had been before the court. This led to the making of an order by the Court of Appeal for the obtaining of an expert report by a Dr Robertson on Peter's capacity to conduct the litigation. The appeal was subsequently allowed by consent, on the basis of the Council's acceptance of Dr Robertson's opinion that Peter lacked capacity to litigate at the material times.
17. Judge Seys Llewellyn took the Carmarthenshire case into account in his ruling to the extent that he could at the time – permission to appeal had been granted but the case had proceeded no further than that. What happened thereafter in the Carmarthenshire proceedings provides no basis in my view for a successful challenge to the judge's ruling. There was no ruling by the Court of Appeal at any stage that Peter lacked capacity. As Rimer LJ made clear in his written directions in the present case, permission to appeal was granted in the Carmarthenshire case (by Rimer LJ himself, as it happens) not because he classed Peter as a protected person but because of a concern as to how the courts should deal with a question of capacity when it had arisen before them; and the appeal was ultimately allowed on the basis of a consent order, without any considered decision by the court that Peter lacked capacity.
18. I have considered Dr Robertson's report itself, dated 2 July 2012, which was one of the documents handed in by Peter at the hearing before us. It goes into detail about Peter's condition and concludes that he lacked the capacity to advocate for himself during March and July 2010 (the periods relevant to that case) and that he lacked the capacity to instruct solicitors in the appeal proceedings. But it does not get Peter home on the present application. It formed no part of the evidence before Judge Seys Llewellyn, having post-dated his ruling, and there is nothing in it that might realistically have led the judge to reach a different decision if it had been available to him. It does not go materially beyond Dr Jones's written report of 4 March 2011 in directly addressing the statutory criteria. It does not provide any substitute for the judge's detailed exploration of those criteria with Dr Jones in his oral evidence, including consideration of the distinction between Peter's ability to deal with information received orally as opposed to in writing, and between his ability to do so in the courtroom setting as opposed to away from it. Accordingly, I do not think that the Court of Appeal would receive Dr Robertson's report as fresh evidence pursuant to rule 52.11(2)(b) of the Civil Procedure Rules or that, even if received, it could lead to the conclusion that the judge's decision was wrong.
19. I have also considered the other documents handed in at the hearing, as well as the documents previously lodged. I can see nothing in any of them to justify a different view of Peter's case from that expressed above.
20. In conclusion, I consider that, even if time were extended to allow the ruling of 8 November 2011 to be challenged, an appeal against that ruling would have no real prospect of success and there are no compelling reasons why an appeal should be heard. I would therefore refuse permission to appeal.

Lord Justice Briggs :

21. I agree.