England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		26 July 2018

MR JUSTICE HOLMAN:

1. The situation with which I have been faced yesterday and today is both sad and tragic. A family which appears once to have been a happy and united family, with every advantage that great wealth can provide, appears, in the last year or so, to have torn itself apart.
2. There was listed for so-called final hearing this week the wife's substantive application for financial remedy orders. A time estimate had been given of three days. So, tomorrow was the last day of the estimated hearing. Tomorrow is also the last day of the last full week of this year's legal sittings before the summer vacation. Quite frankly, it was self-evident to me from the very outset yesterday that there was not the slightest prospect of this case being concluded this week, including a reasonable amount of time for preparation and delivery of judgment in the three days allowed. I personally am fully listed next week, after which I personally begin six weeks of uninterrupted holiday. So, this case was incapable of being finished this week and I could not, therefore, embark upon full substantive hearing of it.
3. In the event, I have been constrained to adjourn this case not part-heard. I hope that good use was made of this hearing by the process this morning of hearing evidence from Mr Mark Southern, the finance director of the Estate, of which the husband is a significant beneficiary. A verbatim transcript will obviously be made of all that evidence and that part of the hearing today at which Mr Southern and leading counsel for the trustees, Miss Tiffany Scott QC, were present. It can clearly stand as evidence at the final hearing for such use of it as either party or, indeed, the trustees themselves may wish.
4. There is, however, a completely separate and discrete reason why, in any event, I would have felt constrained to adjourn the present hearing, even if there was ample time allowed. That relates to the capacity of the respondent husband. To set this in context, Part 15 of the Family Procedure Rules 2010 has the effect, in summary, that if a party to litigation such as this is a "protected party", then he must have a litigation friend to conduct the proceedings on his behalf and, indeed, save with the permission of the court, no further steps may be taken in the proceedings until the protected party has a litigation friend. I wish to stress that the scheme of the rules is that once the court has determined, or it is apparent, that a party lacks capacity and is a protected person, then he must have a litigation friend. There is no remaining residual discretion in the court, however disadvantageous it may be to the other party to suffer the delay which may follow.
5. In many situations it is self-evident that a litigant is, or has become, a protected party; for example, if a litigant suffers some catastrophic stroke or severe road accident such that he loses consciousness or any effective power of reasoning and decision making. Situations like that, frankly, are the easy ones. Much, much harder for the court to deal with is situations in which there is material suggesting that a party may lack capacity, but the question is, or may be, a borderline one. That is particularly so when, as not infrequently happens, a person who, in fact, lacks capacity, for example because of delusions or paranoia, nevertheless strongly protests that he does have capacity and that the facts are not as they are alleged to be. Clearly, a court should not unjustifiably start questioning a person's capacity or unjustifiably and unnecessarily delay proceedings while there is some investigation into capacity. That is particularly the case because of the assumption in section 1(2) of the Mental Capacity Act 2005 that:

"A person must be assumed to have capacity unless it is established that he lacks capacity."

On the other hand, a court must also be careful in situations such as this not to allow itself to be deflected from some investigation into capacity if there are grounds or material tending seriously to suggest that a party may lack capacity. It seems to me currently that the facts and circumstances of the present case are in this very difficult grey territory.

6. I have to say that when I started reading the statements of the wife herself and a witness yesterday, as well as some of the voluminous communications that the husband has sent during the course of these proceedings, I had a growing sense of surprise and wonderment that this question of capacity has not been more directly considered and grappled with at an earlier stage.
7. I begin by reference to some of the statements made within the wife's own statements, admittedly nearly a year ago, last August. In a statement dated 18 August 2017, made in support of her application for an occupation and non-molestation order, now at bundle B1 page E8, she said:

"I believe [my husband] has had a catastrophic mental breakdown and is both unsafe and unstable…"

At paragraph 13 and paragraph 14 of the same statement she said:

"When we first met, [my husband] was a loving and kind man; he does still, on occasions, display those attributes. However, over the last two years I have had many reasons to be concerned as to [my husband's] mental wellbeing. He has always been emotionally vulnerable, but he has more recently become delusional and paranoid; believing that he is in a "one-man battle" against society and that his friends and family are part of the conspiracy… This sort of behaviour became most pronounced about a year-and-a-half ago when he went through a period of being particularly depressed. Ultimately, he had a mental breakdown. Although I managed to persuade him to see the family doctor and a psychiatrist on two occasions, he has repeatedly refused to seek long-term professional help. During his first breakdown he lay on the floor… he was so manic he had to be sedated…"

At paragraph 18 of the same statement the wife makes reference to certain habits of her husband which, she says:

"I believe has severely impacted on his mental health…"

8. A witness, who describes himself as having been the best friend of the husband, made a statement also dated 18 August 2017. In that statement he vividly describes an occasion during August 2017 when the husband entered the matrimonial home in Sussex and, in summary, ransacked it whilst the wife was abroad. He goes on to describe how the husband asked him, the friend, to remove £5,000 cash from a cash dispenser, drawing on the husband's account, which the husband then burnt. No matter how rich a person, to burn £5,000 in cash is not a rational act. At paragraph 2 of his statement, this friend said:

"… having spent four of the last eight weeks with him, I am incredibly concerned as to his mental wellbeing and therefore the safety of those around him… There is a strong risk of him physically harming himself and/or those around him and those he, in reality, loves most. We are taking steps for him to receive residential psychiatric treatment…"

At paragraph 19 of the same statement the friend said:

"My concern for [the husband] is that he is completely unstable. There are mistruths and delusions in almost everything he says…"

So, that is the picture that presented itself in August 2017 to those who know him well.

9. As well as that material, I have seen a quantity of letters or emails sent over a prolonged period of time by the husband to a range of people, including this week to myself. Frankly, these letters lack objective rationality. They are long, rambling, very vituperative, highly anti-Semitic (the wife and her principal solicitor both being Jewish) and to the mind of a lay person such as myself "paranoid" and "delusional". I stress at once that I am not medically trained or qualified and I can only express that as a lay person using those terms in inverted commas.
10. Purely by way of example, I extract a paragraph on page 4 of a long email sent by the husband to me on Monday of this week. He wrote:

"So perfidious, underhand, damaging, calculated and arrogant are their [this I believe is a reference to the wife and her solicitor] claims of anti-Semitism that I can draw no other conclusion than one of the grossest collusions and deceptions are taking place that should result in the abdication of the Crown. Either that or so many treasonous acts, it literally may be impossible to calculate. I ask again, what faith is the Crown the defender of? If the Crown defends the Church of England, created by Henry VIII… then I accuse the Crown of being derelict in its duty. I always wondered why Fiona Shackleton [the wife's solicitor] was so keen to have my case moved to the Royal Courts of Justice. I assumed it was because that was where her clique resided. It has only recently dawned on me what is being shown to me. I am being shown the servants of the Crown. The actual courtroom is a servant to the Crown, it is a royal court."

That is only one of many passages in the letter in question which, quite frankly, is hysterical and devoid of any rationality. I mention that the letter itself was apparently copied to "Her Majesty Queen Elizabeth and to His Royal Highness Prince Charles and His Royal Highness Prince Andrew."

11. Even today, 26 July 2018, at 1515 hours, about an hour ago, the husband, who has chosen, in the end, not to attend the present hearing, sent a further email. This arises out of events yesterday when, as I will explain, I authorised an enquiry being made of a solicitor, Emma Baillie, but the letter itself, frankly, lacks rationality and appears paranoic and obsessive in its tone and content. The husband appears paranoically to believe that he is the victim of some Jewish persecution upon him in which he appears to believe the court itself is now deeply implicated. So, with every letter he writes bar one, the husband seems to me to demonstrate a lack of rationality, paranoia and such distorted thought processes that it may be (and I put it no higher than that) that he lacks the capacity, as section 3 of the Mental Capacity Act 2005 requires, "to use or weigh information as part of the process of making a decision".
12. As well as the contents of his communications, there is a more pervasive lack of rationality by the husband in his approach to these proceedings generally. He is a rich man, possessed of a very large net income which is forecast to be between £1 million and £2 million per annum net of all taxes. He, more than practically any, is very well able to afford, at minimal cost to himself or his standard of living, quality legal representation. He has, in fact, instructed two firms of solicitors who have appeared on the record during the course of these proceedings, but each of whom (for reasons I do not know) have ceased to act. It is quite clear that he is currently engaging with another firm of solicitors, TV Edwards & Co., and specifically a solicitor Emma Baillie. In yet another communication to me sent yesterday afternoon, he refers to Emma Baillie as merely being "a friend of mine" who is "coincidentally" a lawyer. However, it is clear that within the last two months or so he has paid fees, which I can only assume to be professional fees, totalling £100,000 to that solicitor. It is very clear from his bank statements that he made two payments each of £20,000 to that firm of solicitors, and during the course of his evidence this morning Mr Southern, the finance director of the Estate, told us that recently, at the request of the husband, the trustees had paid an additional £60,000 direct to that firm of solicitors. So here is a man who recently and currently is paying £100,000 (which is well within his means) to solicitors, and yet chooses not to instruct them to come on the record or attend the hearing.
13. At an earlier stage in these proceedings, an order was made by Williams J on 26 January 2018 ordering the husband to attend a later hearing which was fixed to consider why he had not, as the rules require, filed and served a Form E. This husband lives partly in Sussex and partly in London, both of them easily accessible to the Royal Courts of Justice. He does not work. He has no need to work. There is, frankly, far less difficulty or inconvenience to him than to most litigants in attending here at the Royal Courts of Justice, with or without lawyers whom he can easily afford, but he did not obey the order and did not attend. These seem to me to be actions and decisions which tend, I put it no higher than that, to suggest that his approach to these proceedings lacks rationality.
14. Further, in his long email to me dated 23 July 2018, last Monday, he clearly indicated, both towards the beginning of the email and again towards the end, that he planned and intended personally to attend this week. He said near the beginning:

"Please note that when the court starts, I will be totally exposed. I will be standing before you without a legal team…"

He said towards the end:

"I make one request. Please allow the process to take place in open court. I will not embarrass you or your court. I have nothing to hide. I will sit/stand where I am requested to. My daughter [who is adult and not a child of these parties] may sit next to me, as my "legal", spiritual and emotional support… Otherwise, I will be alone, without legal representation."

15. Later on 23 July he sent another communication, which was his "open position", that began by saying:

"I cannot have confidence in the fairness of the outcome because of the conspiracy I have identified in the family justice system. However, I have no intention to disrupt proceedings. I do not wish to make submissions and I do not wish to give evidence… I will be quiet and respectful throughout."

So, there, too, he clearly contemplated that he would be attending yesterday, if not today.

16. However, at the outset of the hearing yesterday he did not attend. Instead, there was yet another letter from the husband which I will read in full.

"I write to tell you that I will not be attending the final hearing today. I am overwhelmed at the attacks upon me which have taken an enormous mental and physical toll. I know that the way that the case will be pursued against me will only further affect my mental health. I attach a doctor's note confirming I am too ill to attend court."

That letter is not dated, but since it refers to "the final hearing today" I assume that it was, indeed, prepared and should be regarded as dated yesterday, 25 July 2018.

17. There is indeed an attached note, apparently signed by a salaried GP in his local surgery. That note also does not bear any date and there is no internal indicator as to when, exactly, it was written. However, it reads as follows:

"[The husband] has been suffering from an acute stress reaction relating to a rather acrimonious divorce proceeding. He is suffering from acute anxiety symptoms, disturbed sleep and panic episodes and we will be providing him with support in the upcoming weeks and months. His anxiety is increased by the fear of being involved directly in the court proceedings and if he could be spared this as much as is feasible it would be to the benefit of his mental health."

That note is brief and, frankly, poses as many questions as it answers. Nevertheless, it tends to indicate that the mental wellbeing of the husband is currently significantly impaired. Further, the indication in the letter is that although the husband had said earlier this week that he intended to attend this hearing, it would, in fact, be injurious to his mental health and wellbeing to do so. Participation as a litigant in proceedings of this kind requires a party to make many decisions, large and small, during the course of the proceedings themselves. That is why, generally, parties are, and have to be, personally present for hearings of this kind, subject to their own physical health and capacity.

18. If it be the case that the mental health of this husband is currently so impaired that he is unable to attend or participate in these proceedings, then that, too, raises a serious question as to his mental capacity to litigate without a litigation friend.
19. So, for all these reasons, I personally have considerable reservations and concern as to whether or not this husband may lack capacity to conduct these proceedings and may require the appointment of a litigation friend on his behalf. I stress that at this stage I do no more than express the reservations and concern. The assumption in section 1(2) of the Mental Capacity Act 2005 most certainly is not yet displaced.
20. The difficulty, as I mentioned at the outset of this judgment, in this type of situation is how can the court further investigate the question of capacity so as to be able to make an informed and reliable decision as to capacity? It was pointed out to me yesterday that the husband is, indeed, currently in contact with a solicitor, Emma Baillie of TV Edwards. It may, indeed, be (although I am entirely speculating) that she gave him some assistance in formulating his open offer dated 23 July 2018, for that is the one and only document that I have seen that he has recently written which, on the face of it, is an entirely rational document which makes perfectly fair and clear points from the perspective of his position. So, it was suggested by Mr Nicholas Cusworth QC, on behalf of the wife, that one might, at least, make some preliminary enquiry of Emma Baillie for any illumination she might be able to give as to the current functioning and capacity of the husband.
21. To that end, and at my request, Baroness Shackleton of Belgravia, the wife's solicitor, personally rang Emma Baillie to do no more than ask of her whether she might be willing to attend court today and provide assistance as to the current functioning and wellbeing of this person who appears to be in some client relationship with her. Ms Baillie politely refused by a letter received this morning, explaining that it is not open to her to do so. She said, in her letter dated 26 July 2018:

"My professional obligations prevent me from providing a substantive response to the enquiry raised."

I completely respect that position of Emma Baillie and regard that line of enquiry now as at a dead end.

22. The approach by Baroness Shackleton to Emma Baillie has itself provoked a strong and again "paranoid" reaction from the husband. I wish to say to him through this judgment (which must be transcribed and made available to him) that the approach to Emma Baillie was made with the best of intentions and in an entirely openminded and unbiased way to see if, perhaps, she could provide the reassurance that the husband is functioning with full or adequate capacity, in which case this issue might (I stress might) have been resolved and put to one side. But the fact is that no information has been forthcoming from Emma Baillie, so I am left simply with the position as described by the wife and the witness in their statements and as demonstrated by the husband's voluminous communications to which I have referred, and by his other actions and omissions.
23. Of course, this husband cannot be compelled to seek or produce any psychiatric or similar evidence whatsoever. However, I say to him through this judgment that this issue of capacity is not going to go away. Therefore, I will make a direction today in detailed terms which I have drafted, to the effect that he is invited (I stress, not ordered) to obtain a report from an independent consultant psychiatrist, who has not previously treated him, on the question of his capacity. That psychiatrist must, of course, be sufficiently informed, by seeing the statements to which I have referred and a selection of the husband's communications and, indeed, this judgment, of the reasons for the concern about capacity in this case.
24. If the husband does, indeed, see a freshly instructed and completely independent consultant psychiatrist, then we will all wait to see what that psychiatrist reports. If he does not, then the court will have done all it can to obtain expert professional psychiatric assistance and will have to fall back on making its own more lay assessment on the basis of the other material to which I have referred and any other material which may come into being between now and the hearing as to capacity.
25. It has emerged during the course of today that this case will not now be considered by me again. A final hearing date has been identified when I am not available but another judge is available. It seems to me very important that the same judge who will conduct the final hearing should also be the judge who makes an assessment and ruling as to capacity. I will accordingly direct that there be a hearing as to capacity before that judge on such date as can be fixed later this year.
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CERTIFICATE Opus 2 International Ltd. hereby certifies that the above is an accurate and complete record of the proceedings or part thereof. Transcribed by Opus 2 International Ltd. (Incorporating Beverley F. Nunnery & Co.) Official Court Reporters and Audio Transcribers 5 New Street Square, London EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 civil@opus2.digital This transcript is subject to the Judge's approval.