Phillips & Ors v Symes & Ors

Mental capacity is issue-specific. The court must assess whether the person can understand the issues requiring decisions, with appropriate assistance, rather than whether decisions appear prudent or rational. The inquiry should consider lay evidence, conduct, documents and expert evidence; no category is automatically decisive. Frontal-lobe damage or other medical impairment does not by itself establish incapacity. A person may give evidence and be cross-examined where ordinary safeguards, including fair questioning and reasonable breaks, secure a fair opportunity to participate. Illness does not of itself create a propensity to lie or remove responsibility for dishonest evidence.

The proceedings concerned whether Robin James Symes had sufficient mental capacity to instruct solicitors, participate fairly in litigation, give evidence and be cross-examined. The issue arose after medical evidence was relied on during an earlier appeal. The Court of Appeal refused an adjournment, substantially dismissed the appeal and remitted the capacity question for determination. Mr Symes did not participate in the capacity hearing, so the Official Solicitor assisted the court. The principal questions were whether he was a patient under CPR Part 21, whether he could fairly participate in the proceedings, whether he could give and withstand evidence, and whether mental disorder affected his responsibility during the 2003 hearing.

1. Capacity inquiry. Applying the principles identified in Masterman-Lister v Brutton & Co [2003] 1 WLR 1511, an adult is presumed to have capacity until incapacity is proved. The test is issue-specific and asks whether the person can understand the issues on which consent or decisions may be required, with appropriate explanation and assistance. The court must investigate capacity where there is reason to suspect its absence.
2. Evidence. The court should evaluate lay evidence, the person’s conduct, contemporaneous documents and expert evidence together. Lay and professional observers may provide valuable evidence of litigation capacity, although none is necessarily conclusive. The medical experts’ initial opinions on general management capacity were withdrawn after they considered the substantial documentary and contemporary evidence.
3. Issues 1 and 2. The evidence established that Mr Symes was able to manage complicated business affairs and litigation. He was not a patient lacking general capacity and was capable of fairly participating in the proceedings.
4. Giving evidence. Mr Symes had no period in which he was unable, by reason of mental disorder, to give evidence orally or in writing or to be cross-examined. The court rejected the contrary opinion of Dr Zamar as unsupported and inconsistent with the other evidence. The illness did not create a legal propensity to lie or excuse dishonest evidence.
5. Fair participation in the 2003 hearing. Mr Symes was not incapable of fairly participating in the hearing commencing on 30 April 2003. Future hearings should use ordinary safeguards, including fair questions and reasonable breaks, without imposing rigid or mechanistic requirements.
6. The court criticised the experts’ failure to consider relevant material before maintaining their reports. It referred to The Ikarian Reefer [1993] Lloyds Reports 68 and CPR Part 35 in explaining the expert’s continuing duty to provide objective assistance to the court.

1. Court of Appeal. The appeal was substantially dismissed. The capacity issue was remitted for determination, and directions were given separating the breach-of-orders issue from any contempt application.
2. High Court (Chancery Division). The court determined the capacity issues after a full hearing. Mr Symes was found capable of managing his affairs, participating fairly, giving evidence and being cross-examined.