Revisiting litigation capacity

The Court of Protection team at 39 Essex Chambers analyse a recent High Court case on whether a housing association tenant faced with possession proceedings had capacity to litigate.

In the civil case of Evesham and Pershore Housing Association Ltd v Werrett [2015] EWCOP 29 the judge was faced with the defendant’s application for permission to appeal and, if granted, the appeal from a decision that the defendant had capacity to litigate.

The judge had to decide a number of procedural issues, one of which was whether the finding of capacity was a final or an interim finding. The judge held that the finding was final, thus restricting the court’s ability to review it pursuant to CPR 3 (1) (7) to exceptional circumstances (see paragraphs 21 and 22).

Another procedural issue that the judge had to decide was whether the court below had been right to allow the claimant to participate in an adversarial way. The defendant submitted that the Court of Appeal’s decision in Folks v Faizey [2006] EWCA Civ 381 was authority for the proposition that the other party in litigation did not have a sufficient interest in the capacity issue.

The judge distinguished Folks on the basis that in that case, the other party was not prejudiced by the capacity decision and, therefore, had no interest in its outcome. In this case, the claimant, who was seeking possession on the grounds of the defendant’s behaviour, had a close interest, so the judge held that it was right that the claimant was allowed to participate in the hearing of the issue (see paragraph 27).

As to the defendant’s capacity, the judge held that the court below had been right to find that the defendant had capacity. In those circumstances, he refused permission to appeal.

Comment

This decision is interesting for its findings on the procedural issues and also on the substantive issue of capacity even though it enunciates no new principles. The defendant had certificates from a consultant psychiatrist and a consultant neuropsychologist to the effect that he lacked capacity and the Official Solicitor had written to the defendant’s solicitor stating that that was clearly so and indicating a willingness to act as the defendant’s litigation friend.

The first instance judge’s decision (which the appeal court upheld) was based very much on the finding that, with help, the defendant could understand the nature of the proceedings and give instructions. This was a robust decision but demonstrates that challenges to assertions of lack of capacity can successfully be made.

This article was written by the Court of Protection team at 39 Essex Chambers.