Binder v Binder

Capacity to manage property and affairs for litigation may depend on the subject matter of the litigation. A person may manage business affairs and property generally yet lack capacity to conduct divorce-related proceedings where persistent delusions prevent rational engagement and proper self-representation. Consistent psychiatric evidence is relevant to assessing continuing incapacity. Where that evidence establishes that the litigant cannot manage the relevant family proceedings, the Official Solicitor should continue representing the litigant’s best interests.

This was an application for permission to appeal, and an extension of time, from an order made by the President of the Family Division on 19 June 2001. The order concerned the Official Solicitor’s continued representation of the applicant, who wished instead to be represented by the Litigants in Person Society and sought the President’s recusal.

The central issue was whether the applicant was capable of managing his property and affairs for the purposes of the family litigation. Psychiatric reports indicated that he could manage some business and property matters but remained incapable of managing litigation concerning his divorce because of persistent delusional beliefs.

Application refused. Lady Justice Hale held that the President’s order was plainly correct when made and remained correct.

1. The relevant question was the applicant’s capacity to manage his property and affairs for the purposes of the particular litigation. Capacity was not necessarily global: the evidence indicated that he might manage his antique-dealing business and property while remaining incapable of conducting divorce-related litigation.
2. The psychiatric evidence consistently identified a continuing delusional disorder. The applicant’s fixed beliefs concerned his divorce, lawyers, courts and others involved in the proceedings. Those beliefs caused him to intrude on others, disobey court orders and interrupt proceedings, and meant that he could not properly represent himself.
3. The treating psychiatrist had considered him capable of managing business affairs and property but incapable of managing litigation about the divorce. The Lord Chancellor’s Visitor agreed that his delusions rendered him incapable of managing the financial matters connected with the divorce. Later evidence, including a report concerning his fitness to plead, confirmed the continuing nature of the disorder, although it had not been before the President.
4. Because the applicant remained incapable of managing the relevant family proceedings, the Official Solicitor had to continue doing his best to represent his best interests. The family proceedings had not concluded, and the Court of Appeal had no role in determining their outcome.

The application was dismissed. The formal order was that permission was refused, with the transcript provided at public expense.

1. Court of Appeal (Civil Division): In [2001] EWCA Civ 2057, permission to appeal was refused. The court held that the President’s order was correct and should remain in force.
2. President of the Family Division: On 19 June 2001, made the order concerning the Official Solicitor’s continued representation of the applicant.