Provision has long been made in this country for the custody of the lands of people with mental health difficulties. During the reign of Edward II, De Prerogativa Regis confirmed the common law rules concerning the royal prerogative. This included the power to seize the estates of those deemed incapable of looking after their own affairs.
The king was to provide for them from the income of the estates, and was obliged to return the estates to the family upon death. In the case of recovery from mental ill health, the king had to release the estate upon proof of sanity.
Over the course of time, the rules regarding mental capacity have been reformulated with regard in particular to property holding and litigation. The Mental Capacity Act 2005 made major changes to the law to protect and empower those who lack capacity, and now sets out the applicable law, while Part 21 of the Civil Procedure Rules (CPR) sets out the procedure. The theme of this issue provides an opportunity to examine the effect of these provisions in a litigation context.
Mental Capacity Act 2005
The 2005 Act provides a general power to make decisions for those unable to make them themselves, including decisions about property and affairs, extending to the control and management of the property, and its acquisition and disposal. The system is administered through the Court of Protection, which can make decisions on behalf of the person incapable or appoint a deputy to make decisions on his or her behalf.
CPR 21 and its accompanying Practice Direction have given effect to the 2005 Act, as it applies to litigation, and those appearing in court need to be closely aware of their contents. The Rule uses the expression “protected party” to refer to a party, actual or intended, who lacks capacity to conduct the proceedings. Rule 21.2(1) then provides that a protected party must have a litigation friend to conduct proceedings on his behalf. A litigation friend is either appointed by the court, or is someone who has filed an appropriate “certificate of suitability”. And now here is the bit requiring attention: a person may not, without the court’s permission, make an application pre-proceedings or take any step in proceedings (other than issuing and serving a claim form or applying for the appointment of a litigation friend) until the protected party has a litigation friend. Moreover, any step taken before a protected party has a litigation friend has no effect unless the court orders otherwise.
How does one recognise in practice that a person lacks capacity? The test is set out in the 2005 Act in some detail – but frequently the disability will not be obvious. The burden of proof is on the person who asserts that capacity is lacking. If there is any doubt as to whether a person lacks capacity, this is to be decided by the court on the balance of probabilities.
How does all this work in practice? Here are three examples drawn from recent cases.
The invalid consent order
In Dunhill v Burgin [2014] 1 UKSC 18, the claimant had suffered severe brain damage in an accident caused by the defendant. In 2003, she settled her claim for damages for £12,500, before the case was called for hearing. The claim was, in fact, worth at least £800,000. At the time, no one considered whether the claimant was a protected party, even though she was legally represented, and was accompanied by a mental health advocate. In 2009, the claimant, now acting by a litigation friend, issued an application in the original proceedings seeking a declaration that she did not have capacity at the time of the settlement, and applying for the settlement order to be set aside. The litigation wound its way up to the Supreme Court, which decided that on the test properly to be applied, the claimant had lacked the capacity to commence and to conduct proceedings. She should have had a litigation friend from the outset and any settlement should have been approved by the court under CPR 21. The court ruled that the consent order must be set aside and the case go for trial.
The invalid forfeiture
A landlord brings forfeiture proceedings. An order for possession is made by the county court. The apparently compos mentis defendant fails to comply with the conditions for relief (the payment of a trivial amount of money), and the order for possession is enforced. Many months later, by which time the defendant is living in a homeless person’s hostel, a care worker who hears his story surmises that the defendant has no medium-term memory, because of an earlier road traffic accident, and that this explains his failure to appreciate the deadline for complying with the terms for relief. An application for the appointment of a litigation friend is made just before the title is closed, and the whole process is unravelled.
The stalled proceedings
A tenant serves notice to extend his lease, and proceedings are issued. It is common ground that the tenant lacks capacity, most obviously because he refuses to engage in the litigation, leading to many abortive hearings. The delays are lengthy, and costs are extensive. The same is true, unfortunately, of many sets of proceedings where capacity becomes an issue.
Practical ramifications
As these examples show, mental incapacity can unravel successful outcomes in court. Accordingly, even though the appointment of a litigation friend can lead to years of frustration and increased cost for the party claiming a remedy against a protected person (frequently a landlord seeking possession), the prudent course where there is any hint of mental incapacity will be to raise the matter with the court at the outset.
Guy Fetherstonhaugh QC is a barrister at Falcon Chambers
