England and Wales High Court (Chancery Division) Decisions

IN THE COURT OF PROTECTION
MENTAL CAPACITY ACT
(Applicant in the Main Proceedings)

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/06/2018

Mr Justice Norris:

1. Z was a successful businessman. At least some of his ventures were carried out jointly with his brothers (Brother X and Brother Y). Brother X is still alive (and in the title to the proceedings is identified by the initials "CD", though in this judgment I will use the designation "Brother X"). Brother Y is dead: one of his children (and so a nephew of Z) is the present applicant in this procedural application (identified in the title to this application by the initials "OO" but whom I shall in this judgment call "the Applicant").
2. Z is married: in the title to the proceedings Z's wife is identified by the initials "AB", though in this judgment I will use the designation "the Wife". I do not intend by that usage to depersonalise her. Z and the Wife have four children. Two of their children are parties to the proceedings. In the title to the proceedings they are identified by the initials "EF" and "GH", though in this judgment I will use the designation "the Children" (again, without intending to offend).
3. This is a procedural application in existing proceedings in the Court of Protection ("the Main Proceedings"). The Main Proceedings have been commenced by the Wife who has named Brother X and the Children as the respondents to it. By this procedural application the Applicant seeks to be joined as a respondent to the Main Proceedings.
4. In the Main Proceedings the Court of Protection is being asked to determine;

(a) The current capacity of Z to manage his property and affairs;

(b) The current capacity of Z to make or revoke powers of attorney;

(c) The validity of powers of attorney apparently granted by Z in or since September 2016;

(d) Whether any such valid powers have been validly revoked;

(e) If Z has lost capacity to manage his property and affairs (and subject to issues relating to the powers of attorney) then who should now manage that property and those affairs;

(f) Certain welfare questions relating to contact between Z and his wider family.

In the Main Proceedings the protagonists are the Wife and Brother X: they have different views on each of these questions. In the Main Proceedings the Applicant is a supporter of Brother X and has filed a witness statement.

5. In his witness statement in the Main Proceedings the Applicant says that although he is based abroad he has visited this country three or four times a year to visit members of the family (especially Z), and that over the years he has spent an enormous amount of time with him. He describes the personal and business relationship between Z and Brother Y, how Z bought out Brother Y's interests in their joint ventures, and how (notwithstanding the buyout) Z promised Brother Y that if one of the joint ventures was sold then he (Z) "would look after" Brother Y's children. The Applicant stated in his evidence that as Brother Y's life drew to an end Z made a clear promise to pay a specific sum ("the Amount") to the Applicant in the event of the sale of one former joint-ventures: and that, following the death of Brother Y, Z did indeed pay about 60% of the Amount. (It later became apparent that Z is also making a significant monthly allowance to the Applicant and to the Applicant's sister). The Applicant then explains that at a meeting on 9 December 2017 (at which Brother X was present and in which he participated) Z promised to pay the balance of the Amount. The Applicant's original position was that this amounted to a contract (because it was connected in some way with the Applicant's ceasing to use a flat belonging to Z which Z had periodically permitted the Applicant to use when the Applicant visited this country): but at the hearing of the procedural application Leading Counsel for the Applicant also approached the matter on the footing that this might have amounted to a gift (a position hinted at in the application notice itself). The balance of the Amount seems to have exceeded the sum standing to the credit of Z's personal bank account, and to have substantially exceeded the amount which Z had mandated the bank to pay in a single transaction. So, when Z attempted to pay the balance of the Amount his attempts were unsuccessful: and the Applicant suggests that Z's further attempts (apparently 10 in number) to pay the balance of the Amount by other means and with the active assistance of Brother X have been blocked by the Wife for no apparent reason.
6. In view of the non-receipt of the balance of the Amount, solicitors for the Applicant wrote to the Wife on 9 April 2018 (and so after the commencement of the Main Proceedings to which the Applicant is not a respondent) a "letter before action" alleging that the Wife had procured a breach of contract or unlawfully interfered with Z's performance of what was called "the 9 December Agreement". The threatened commencement of civil proceedings against the Wife alongside the Main Proceedings was explained by the Applicant's solicitors in this way:-

"The matters are distinct and, particularly in the light of [Z's] deteriorating health, it is important that our client's complaints are heard as soon as possible."

7. In their response the Wife's solicitors noted that the claim was being advanced against the Wife alone (there being no claim against Z for breach of contract): and they took the position that the Main Proceedings were of relevance to the direct claim of the Applicant against the Wife because

"If… the Court of Protection declares [Z] lacked capacity to make decisions about his property and financial affairs in a period in which 9 December 2017 falls, then your client's claim is clearly hopeless…"

8. By the procedural application the Applicant now seeks to be joined as a respondent to the Main Proceedings on the grounds that he has a 'sufficient interest' to be joined as a party: or alternatively that it is desirable to join him so that the court "can resolve all matters in dispute in the proceedings and/or an issue which is connected to the matters in dispute in the proceedings". In his application notice he elaborates upon that by saying that he has (and for nearly 50 years has had) a very close relationship with Z "akin to a father-son relationship", that he is the most senior member of Brother Y's branch of the family, and that he entered into a contract with Z on 9 December 2017 and has an interest in Z's capacity to contract or make a gift on that date.
9. In support of his application the Applicant has made two further witness statements. The first repeats (but sometimes adds a layer of detail to) his witness statement in the Main Proceedings. The second (in reply to the Wife's evidence in the procedural application) exhibits a transcript of the meeting that took place on 9 December 2017, which meeting the applicant had recorded on his mobile phone. The accuracy of the transcript has been challenged: I do not need to resolve the dispute about the transcript for the purposes of the procedural application.
10. The formal position of Brother X in relation to the procedural application is one of neutrality: but at the hearing Leading Counsel on his behalf told me he "recognised the strength" of the Applicant's position. His concern was that joinder should neither delay nor prolong the Main Proceedings: but suggested that that concern would be overcome by the imposition of strict time limits on the extent of the Applicant's participation.
11. The clear and argued position of the Wife is to object to the joinder: and that is the formal position of the Children, who did not take part in the hearing.
12. At the hearing of the procedural application Leading Counsel for the Applicant explained that the Applicant was concerned that the Wife was trying to take sole control of Z's estate for herself and the Children and to prevent Z from fulfilling the promise which he made to Brother Y and the agreement that he made with the Applicant in the presence of Brother X on 9 December 2017. Counsel's original position was that Z's capacity to contract or to make a gift on 9 December 2017 should be added to the list of issues to be determined in the Main Proceedings, because (a) it represented a clear financial interest of the Applicant in the issues to be determined; and (b) unless it was determined the Applicant "would start 30-0 down" in any subsequent contest about the effects in law of the events of 9 December 2017 because of the "side-wind effect" of determinations about capacity in other contexts. But in the last minutes of the hearing Leading Counsel for the Applicant indicated that if this submission stood in the way of the Applicant's joinder and active participation in the decision about who should manage the property and affairs of Z (if Z's incapacity was established) then the Applicant would not seek formal determination of the issue (and so would live with the "side-wind effect"). He submitted however that that very "side-wind effect" of itself gave the Applicant a sufficient interest to be joined in the Main Proceedings. He submitted that it was a matter of natural justice: the Wife had a financial interest in stopping the payments, and the Applicant had a financial interest in obtaining the payments, and both should be parties to the Main Proceedings. Leading Counsel resisted any limitation on the applicant's participation if and when joined.
13. These are the principles that I intend to apply when determining the issues that arise for decision.
14. First, the focus of the Main Proceedings is Z. Does he or did he have the capacity for autonomous action in relation to specific transactions? If not, what is now in his best interests?
15. Second, the complexities of life and the sensitivity of the issues mean that there will be protagonists advancing competing view on these questions, and there will be supporters of those protagonists. The protagonists who are parties will have to identify the issues of fact and law that divide them. But the Court is not resolving issues between selected protagonists. The proceedings are not an adversarial contest. The role of the Court is more akin to an inquisitorial one, in which the judge takes proper account of the views of those who appear to have contributions of value to make. Those contributions may consist of factual evidence or expert evidence about capacity. Those contributions might be factual evidence or opinion evidence which help the judge answer the question: "Are there solid reasons in the interests of Z why I should do this or do that?"
16. Third, those views might be advanced in evidence (and perhaps scrutinised through cross-examination). Those views might be advanced in submission and argument by parties. But no protagonist or supporter has a right to insist on submitting evidence: and no protagonist or supporter has a right to insist on being a party or being separately represented. That is because the Main Proceedings are to be actively managed by the Court in accordance with the over-riding objective set out in rule 1 of the Court of Protection Rules 2017 ("the Rules"). Active management by a judge in charge of proceedings that have an inquisitorial aspect involves that judge in deciding what will be of real assistance in enabling a just conclusion to be reached upon Z's capacity and Z's best interests (perhaps to a greater extent than in adversarial proceedings in which a judge is resolving a dispute between parties). This is the clear thrust of rule 1.3 of the Rules.
17. Fourth, the form of the Main Proceedings is not determined by their initial constitution as selected by the Wife. The Court has a general power to order a person to be joined as a party if it considers that it is "desirable" to do so for the purpose of dealing with the Main Proceedings: see rule 9.13(2) of the Rules. The focus is therefore on the matters for decision in the Main Proceedings: and the question is whether, balancing the pros and cons of the particular joinder under consideration (and in particular assessing them against the factors identified in rule 1.1(3) of the Rules), those matters are more justly and proportionately addressed if the proposed party is added. As it was put in Re SK [2012] EWHC 1990 at paragraph [42]:

"The clear import of that wording is that the joinder of such an applicant would better enable the Court to deal with the substantive application…."

18. Fifth, the Applicant can invite the Court to join him as a party to the Main Proceedings by demonstrating (a) that he crosses the threshold of having "a sufficient interest" within rule 9.15(1) of the Rules; and (b) that the overriding objective would be served by his joinder. For this purpose a "sufficient interest" excludes some commercial interest of the Applicant's own (unless the resolution of the Main Proceedings would determine once and for all some financial liability of the Applicant): see Re SK (supra) at paragraph [41]. (There is here no question of any liability falling upon the Applicant). A "sufficient interest" must be a sufficient interest in the matters being considered in the Main Proceedings: but they would include an "interest" in the ascertainment of Z's best interests (to the extent that Z's "best interests" can be disentangled from the relevant applicant's commercial interests).
19. Sixth, whilst "joinder" and "separate representation" at a hearing are capable of being separate questions they are often (as here) closely related - if not identical. The Applicant seeks joinder so that he can be separately represented by his own Leading Counsel in the Main Proceedings. The same question can arise in family proceedings concerning children. In A County Council v X and Y [2010] EWCA Civ 581 at [45] the Court of Appeal directed that only in cases of clear and unavoidable conflict of interest between parties in the same interest should there be separate representation at hearings: and the mere fact that parties' advisers might see the legal arguments differently was not a good reason for using up additional Court time, as would be a consequence of separate representation. The Court should ask (as the Court did in Re SK (supra) at paragraph [42]):-

"What would the Applicant add to the debate about Z's best interests if added as a party?"

20. Applying those principles to the present application I have decided to refuse it: but to direct that the Applicant's witness statements in the procedural application shall stand as evidence in the Main Proceedings (a direction that can be reviewed at the forthcoming case management hearing). These are my reasons.
21. First, the paralysis in Z's affairs cannot continue. It is of the utmost importance that the Main Proceedings be resolved speedily. Anything that has the potential to delay or to prolong that resolution must be avoided. Adding a party who resists limits being put on his participation and with the object that he shall undertake additional cross-examination and make additional submissions is incurring an undesirable risk.
22. Second, the Applicant has produced enough material to support a serious argument that he has a "sufficient interest" in the "best interests" aspects of the Main Proceedings. That argument is that he is a family member (though it seems not as close as the Wife, the Children or Brother X) with some insight into Z's character and to whom Z may have expressed some intentions. The Applicant has set out what evidence he can give on those matters in his witness statement in the Main Proceedings, where he supports Brother X. He has elaborated upon that (and exhibited a transcript of a conversation) in evidence in the procedural application. The Wife has challenged the accuracy both of the evidence of contact and of the transcript, and advanced her own insight and her own evidence about expressed intentions. It is not appropriate to decide at this procedural stage (as an isolated issue and without cross-examination) which of the conflicting witness statements is right. In the Main Proceedings the judge will have to form a view about what (if any) weight should be given to all that material having considered the totality of the evidence. It is enough to say that the Applicant's evidence cannot simply be discredited, and if accurate provides serious support for the argument that he has a "sufficient interest". That, of course, does not give him a right to be joined. It is important that all of the Applicant's relevant and helpful evidence is before the Court: and that all of it can be tested. But it is not necessary that for that purpose the Applicant should be a party or be separately represented: nor is it desirable.
23. Third, the Applicant has his own separate commercial interest. It is not a matter that is before the Court in the Main Proceedings. It is not (as the Applicant's solicitors originally contended) completely separate from the issues in the Main Proceedings. But nor will the determination of the issues in the Main Proceedings be dispositive of the Applicant's contract claim (as the Wife's solicitors originally contended). There may be (as was acknowledged at the hearing) a "side-wind effect" upon one issue in the contract claim (for there are significant contract issues quite apart from capacity). But it would not be helpful to the resolution of the Main Proceedings to add in another formal issue about the capacity of Z to make or to carry though any December 2017 arrangement when those other aspects of the contract claim will inevitably have to be determined elsewhere. It would not be helpful to give that commercial interest of the Applicant any prominence in the Main Proceedings, as might result from making the Applicant a party. The commercial interest of the Applicant is relevant only insofar as it bears upon the question: who should be the deputy? It may in the light of the evidence as a whole have little or no bearing: but in any event, on that issue the Wife and Brother X are already the protagonists.
24. Fourth, although the Applicant submits that he does not (because of the secrecy that surrounds the Main Proceedings) know what Brother X will say about the issues in the Main Proceedings, I cannot accept that submission. It is plain that (a) he knows that the matters on which he has already given evidence are relevant; (b) he asserts that he has some opinions to express about who (in the event of Z's incapacity) should manage his affairs and has given evidence which he says gives weight to his opinions; (c) a simple reading of the transcript (even excluding from consideration the parts under challenge) demonstrates a complete unity of view between the Applicant and Brother X about (i) whether Z should carry through any arrangement he made with Brother Y (ii) what role the Wife has played or will play in obstructing any such arrangement and (iii) the character of the Wife and the Children and of their relationship with Z.
25. It may be that the Applicant would (if a party and separately represented) approach a question in cross-examination or a submission in argument differently from Brother X's legal team. But as the County Council Case (supra) makes clear, such considerations do not generally justify utilising the additional resources required. In the instant case I do not see what of value can be added to the debate on the issues in the Main Proceedings by a separately represented Applicant. I can see a positive disadvantage in having the Wife cross-examined separately by two parties who have not demonstrated any conflict between their respective positions (just as I would think it inappropriate for the Children to be separately represented and to separately cross-examine Brother X and the Applicant if there is no significant difference between the Wife and the Children). The overriding objective must be taken seriously. The task facing the judge is difficult enough without adding unnecessary and unfruitful contention.
26. Fifth, standing back and weighing the pros and cons of joinder this strikes me (for reasons apparent from the foregoing) as being a case where the need for a just and proportionate determination of the issues means that it is not desirable to permit joinder.
27. I therefore refuse joinder, and direct that the Applicant's evidence in the procedural application shall stand as evidence in the Main Proceedings (but without thereby intending to inhibit the case management powers of the judge managing the Main Proceedings).
28. This judgment is a public document: but the parties to the procedural application and to the Main Proceedings are anonymised and their identity must not be disclosed. Failure to observe that restriction is a contempt of Court.