Analysis
This was an application for permission to appeal from a decision of HHJ Seys Llewellyn QC in a case concerning wills. Peter Lewis contested the will of his father, Kenneth Lewis on the basis of undue influence and/or fraud. David Lewis, the beneficiary under the will, issued proceedings to determine the issue. The judge below found for David.
The application concerned Peter’s litigation capacity. Peter suffered from Asperger’s syndrome. In the earlier stages of the litigation Peter was in receipt of legal aid and represented by solicitors. At their request and on the basis of an expert report by Dr Jonathan Jones, a clinical psychologist, the Official Solicitor was invited and accepted the invitation to act as litigation friend. Subsequently Peter’s public funding was withdrawn and the Official Solicitor became unwilling to act. The question arose as to whether Peter could continue as an unrepresented litigant without a litigation friend.
The judge decided to revisit the issue of capacity. He called Dr Jonathan Jones to give oral evidence at the Court Service’s expense. Having heard that evidence he concluded that Peter did have capacity to conduct proceedings. He said that he would have reached that conclusion from a neutral starting point, on the evidence before him. However, he based he is decision on the statutory assumption of capacity in s1 of the Mental Capacity Act 2005. The judge also took and referred to extensive special measures designed to assist Peter in the proceedings. The judge was satisfied that the effect of these was to ensure that the case was justly and fairly tried.
Peter applied for permission to appeal on three grounds: (1) that the judge erred in law when he permitted the proceedings to continue without a litigation friend; (2) that he erred in law when he called an expert witness to provide oral evidence in circumstances where Peter had been earlier ruled to lack capacity and was representing himself in person; and (3) that the decision to proceed without a litigation friend was unlawful as there was no evidence that Peter was capable of managing his own affairs or conducting proceedings.
In written directions, Rimer LJ directed an oral hearing at which further directions could be considered if necessary. The hearing was attended by Peter but not by any other party. A substantial number of documents were provided by Peter at the hearing. The court of appeal reserved judgement.
On giving judgment the court held that there was procedurally nothing further that could be done to assist Peter. They had the benefit of various expert reports and it was not practicable to appoint a litigation friend. The court proceeded to the decision on the application for permission to appeal.
In relation to the substantive application, the court noted that (1) it was many months out of time and no good grounds have been advanced for an extension of time and that (2) in any event, it was not the case that the judge below fell even arguably into error in adopting the procedure he did or reaching judgement on capacity. He was entitled to hear from Dr Jonathan Jones, directed himself correctly and reached a conclusion reasonably open to him on the evidence.
The court also considered a report by a Dr Roberton, prepared by order of the Court of Appeal in relation to unrelated possession proceedings. The report concluded that Peter lacked capacity to advocate for himself at the relevant time. However, it does not assist Peter on the current application. It formed no part of the evidence before the judge below and there is nothing in it that might have realistically led the judge to reach a different conclusion had it been available to him. As a result, the court was of the opinion that the Court of Appeal would not have received it as fresh evidence pursuant to the Civil Procedure Rules, or even if received would it have led to the conclusion that the judge’s decision was wrong.
Held:
- 1) Even if time were extended to allow the ruling to be challenged, an appeal against the ruling would have no reasonable prospect of success and there were no compelling reasons why the appeal should be heard. Permission to appeal was refused.
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