I don’t think I’ve ever written here before about the issue of litigation capacity, or whether a party to court proceedings has the mental capacity to deal with the case. Litigation capacity doesn’t arise very often in the context of family court proceedings, but it is just as important here as in any other type of court proceedings.
What happens if the issue is raised? Well, briefly, the court will make a decision whether that party does have the capacity to litigate, usually after hearing medical evidence on the subject, and if they decide that the party does not have capacity then a ‘litigation friend’ must be appointed to conduct the proceedings on their behalf. Same with the permission of the court, no further steps may be taken in the proceedings until the litigation friend has been appointed. The court can appoint anyone to be a litigation friend, including a family member of that party, a friend of theirs, or a solicitor.
A rare example of the issue of capacity arising in a family context is the recent case TP v PRBP, which concerned a wife’s application for financial remedy orders.
The case was being heard by Mr Justice Holman in the High Court and had been listed for a final hearing. He began his recent judgment with these sad words:
“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.”
Part of that tragic situation was the husband’s apparent mental state. The wife herself said in evidence that she believed he had “had a catastrophic mental breakdown”, and that he was “both unsafe and unstable”. She went on to say that he had “recently become delusional and paranoid”, believing that he was in a “one-man battle” against society”, and that his friends and family were part of the conspiracy.
Another witness, a friend of the husband, described how the husband asked him to remove £5,000 cash from a cash dispenser, drawing on the husband’s account, which the husband then burnt. As Mr Justice Holman said, no matter how rich a person (and the husband is rich), to burn £5,000 in cash is not a rational act.
The husband had also written a number of letters and emails to a range of people, including Mr Justice Holman, which Mr Justice Holman said suggested to him, as a layperson, that the husband was “paranoid” and “delusional”. He said that the husband appeared ‘paranoically’ to believe that he was the victim of some Jewish persecution upon him (the wife and her principal solicitor both being Jewish), in which he appeared to believe the court itself was deeply implicated.
The husband refused to seek professional help, and also to instruct solicitors to act for him in the proceedings, despite paying the sum of £100,000, which was well within his very substantial means, to a firm of solicitors. He failed to attend the hearing himself, sending in a note from a GP which indicated he was suffering from an acute stress reaction, as a result of the acrimonious divorce proceedings.
In the light of these facts, Mr Justice Holman had
“considerable reservations and concern as to whether or not this husband may lack the capacity to conduct these proceedings and may require the appointment of a litigation friend on his behalf.”
The difficulty, of course, was: how could the court further investigate the question of capacity so as to be able to make an informed and reliable decision as to capacity? The husband could not be compelled to seek or produce any psychiatric or similar evidence.
Mr Justice Holman therefore adjourned the case (which he was going to do anyway, as there was not time to continue with the hearing), and made a direction to the effect that the husband was invited (not ordered) to obtain a report from an independent consultant psychiatrist, who had not previously treated him, on the question of his capacity. If the husband does not obtain such a report, then the court will have to fall back on making its own more lay assessment, on the basis of the other material referred to above, and any further material which may come into being prior to the hearing as to capacity.
As Mr Justice Holman said, a very sad case. Let us hope that the husband complies with the direction, and also seeks whatever help he may need.
You can read a full report of the judgment here.