Shield v Shield

Where an application concerning a litigation friend and legal representation is raised shortly before a significant substantive hearing, the court may decline to determine it if the hearing estimate is inadequate, the issue was raised late, and there is insufficient time to reorganise the litigation. Such a decision does not determine the merits or prevent the application being renewed. Where medical evidence concerning a party’s capacity is equivocal or has become outdated, the court may direct a further assessment and leave capacity to be reconsidered at the substantive hearing.

The wife applied for consideration of concerns about the appointment of the respondent’s litigation friend and the involvement of the litigation friend’s firm of solicitors in representing both the respondent and the intervening son. The application was made on 23 August 2013 and listed for four hours on 1 November 2013. The respondent had been appointed litigation friend on 5 February 2013, without an appeal being brought, and a substantial preliminary issue concerning ownership of a valuable family enterprise was due to be heard three weeks later.

The court also considered whether the respondent continued to lack capacity and whether further medical evidence was required.

1. No order on the application. The court declined to give substantive consideration to the wife’s application concerning the litigation friend and legal representation. The court expressly stated that it was not dismissing the application and had made no determination on its merits.
2. The hearing estimate was materially inadequate. The application involved substantial reading, strongly contested issues, and serious questions concerning the conduct and appropriateness of members of the solicitors’ firm.
3. The application had been raised too late. The litigation friend had been appointed on 5 February 2013, the wife had opposed that appointment, and no appeal had been brought within the relevant period.
4. The imminent preliminary-issue hearing also militated against determination. Only three weeks remained, making it practically difficult to identify a replacement litigation friend and obtain alternative legal representation without jeopardising the substantive hearing.
5. The application could be raised again in the future. The court’s decision was procedural and did not preclude later consideration of the underlying concerns.
6. The existing psychiatric report on capacity was regarded as relatively equivocal and was several months old. The court directed that the psychiatrist should reassess the respondent and prepare a further report, leaving the question of capacity to be revisited by the trial judge at the forthcoming hearing.
7. The judge expressed regret that a financial dispute between close family members had not been addressed through an earlier FDR. Those observations were not a formal determination or general direction concerning the timing of FDRs.