Lewis v Lewis

The appeal concerned an application for permission to appeal a High Court ruling that the appellant, who suffered from Asperger's syndrome, had capacity to conduct litigation under the Mental Capacity Act 2005. The judge had ordered that the Official Solicitor act as litigation friend earlier in the proceedings, then revisited the question of capacity after public funding was withdrawn and, on the oral evidence of Dr Jonathan Jones, concluded that the statutory presumption of capacity in section 1 of the Mental Capacity Act 2005 had not been displaced and that the appellant had capacity to conduct the proceedings.

The Court of Appeal refused permission to appeal. It held that the trial judge had been entitled to call and hear oral expert evidence, had directed himself correctly on the statutory criteria (including those in section 3 of the Mental Capacity Act 2005), and had reasonably reached the conclusion he did. The court also relied on procedural considerations: the application was out of time, the appellant had had a full opportunity to present his case (including special measures to assist him), and subsequently obtained expert material (Dr Robertson's report) post‑dating the judge's ruling would not have led to a different conclusion and did not qualify as fresh evidence that would justify permission under CPR rule 52.11(2)(b).

Background and nature of the proceedings: The underlying dispute concerned the validity of a 2006 will said to disinherit the appellant, Peter Lewis, in favour of his brother. The substantive trial, before His Honour Judge Seys Llewellyn QC, concluded for the respondent (the brother) on 6 June 2012 after a lengthy trial. The present application was for permission to appeal against an earlier ruling of 8 November 2011 that the appellant had capacity to conduct the proceedings.

Procedural history and facts relevant to capacity: The appellant suffers from Asperger's syndrome and associated cognitive, social and communication difficulties. Early in the litigation, funded representation was in place and the Official Solicitor was appointed as litigation friend on the basis of a written report by Dr Jonathan Jones. After public funding was withdrawn, the Official Solicitor would not continue without funding and the judge reconsidered capacity. The judge arranged for Dr Jones to give oral expert evidence at public expense and, after hearing him, found that the statutory presumption of capacity in section 1 of the Mental Capacity Act 2005 had not been displaced. The judge also described and ordered special measures to enable the appellant to participate fairly in the trial (video link, staged evidence, transcripts, judge asking searching questions on appellant's behalf, written closing submissions with claimant to go first).

Issues before the Court of Appeal: The appellant advanced three principal grounds: (1) error in proceeding without a litigation friend, (2) unlawfulness in calling an expert to give oral evidence where the appellant had previously been ruled to lack capacity and represented himself, and (3) lack of any evidence that he could manage or administer his own affairs or conduct the proceedings. He also relied on the Equality Act 2010 and sought appointment of a specialist advocate.

Court's reasoning and disposition: The Court of Appeal proceeded on the basis that the application for permission to appeal was late and that no grounds for extension of time had been offered. Substantively, the court held that the trial judge had been justified in securing Dr Jones's attendance for oral evidence because the earlier written report did not expressly address the statutory criteria in section 3 of the Mental Capacity Act 2005. The judge had examined each statutory criterion, considered the overall picture and had reached a conclusion reasonably open on the evidence. The Court of Appeal considered, but rejected as a basis for overturning the ruling, a later expert report by Dr Robertson arising from unrelated possession proceedings; that report post‑dated the judge's ruling and did not materially add to Dr Jones's evidence on the statutory criteria. The court concluded that, even if time were extended, there was no real prospect of success and no compelling reason to hear the appeal, and refused permission to appeal.

Wider context: The court emphasised careful case management and reasonable adjustments already provided, the need to balance fairness to the disabled litigant with fairness to the other party, and the procedural difficulty that a litigant who claims lack of capacity cannot normally bring proceedings without a litigation friend.

Permission to appeal was refused and the application dismissed. The Court of Appeal held that the High Court judge had properly revisited and determined the appellant's capacity, correctly applied the statutory criteria under the Mental Capacity Act 2005 (including section 1 and section 3), was entitled to call Dr Jones for oral evidence, and that the application was out of time and had no real prospect of success even if time were extended.

Appeal to the Court of Appeal (Civil Division) from the High Court of Justice, Chancery Division, Cardiff (His Honour Judge Seys Llewellyn QC): the judge gave a detailed ruling on capacity on 8 November 2011 and a substantive judgment in the will dispute on 6 June 2012 (claim no: 8CF30085). Permission to appeal application heard in the Court of Appeal on 27 March 2014; judgment given 8 April 2014 refusing permission. Directions from Rimer LJ of 16 December 2013 governed the procedure for the application to this court.