Carmarthenshire County Council v Lewis

Where information raises a question about a litigant’s capacity to conduct proceedings, the court must take appropriate steps to satisfy itself whether the litigant has sufficient capacity before continuing. It cannot ordinarily determine capacity safely from its own impression of the litigant or from conduct during a hearing. An “unless” order requiring examination, backed by debarring the litigant from defending, is not ordinarily an adequate solution. Failure to address capacity may justify permission to appeal where an order may have been made against a protected party without a litigation friend.

Peter Lewis renewed an application for permission to appeal against a possession order made by Swansea County Court in favour of Carmarthenshire County Council on 27 July 2010. He had been a secure tenant and had not attended the hearing because he was in hospital. The proposed appeal alleged that, in light of his Asperger’s Syndrome and specialist assessments, the judge had failed to consider whether he was a protected party under Part 21 of the Civil Procedure Rules 1998. A secondary ground concerned the judge’s failure expressly to consider the reasonableness of making the possession order. The central issue was the procedure required when information raises a question about a litigant’s capacity.

Permission granted. The renewed application was granted and the appeal was directed to be expedited.

1. The possession proceedings raised a substantial procedural concern. The applicant had been diagnosed with Asperger’s Syndrome, specialist assessments were before the court, and District Judge Thomas had previously expressed concern about his capacity. Judge Vosper referred to the relevant material but did not expressly determine whether the applicant had capacity to defend the proceedings.
2. Once the court possesses information raising a question about a litigant’s capacity to conduct litigation, it must adopt an appropriate procedure to satisfy itself whether the litigant has sufficient capacity. The court cannot ordinarily and safely resolve the issue merely from its own impression of the litigant. Participation in a hearing does not by itself establish capacity.
3. An “unless” order requiring the applicant to submit to examination by a specialist, with debarring consequences if he refused, was not regarded as a satisfactory solution to the capacity concern. The risk was that an order had been made against a protected party without a litigation friend.
4. The court did not finally determine the applicant’s capacity, the validity of the possession order, or the separate reasonableness ground. A stay of execution of paragraphs 4, 5 and 6 of the possession order was continued pending judgment on the appeal or further order. The respondent was permitted, on 48 hours’ notice, to apply to vary or discharge the stay.

• Court of Appeal (Civil Division) — Patten LJ refused permission on the papers on 11 November 2010. On renewal, Rimer LJ granted permission, ordered expedition and continued the stay of execution: [2010] EWCA Civ 1567.
• Swansea County Court — Her Honour Judge Vosper QC made a possession order in favour of the Council on 27 July 2010.