Lewis v Lewis

Where circumstances relevant to representation change, the court may revisit a litigant’s capacity to conduct proceedings and obtain oral expert evidence addressing the statutory criteria. Capacity must be assessed against the evidence as a whole, including difficulties not apparent from courtroom presentation and differences between written and oral information or between settings. A consent-based appeal in unrelated proceedings, without a considered judicial finding on capacity, does not undermine a separate capacity ruling. A later expert report will not justify appellate intervention where it adds no material evidence and could not affect the outcome. Permission may be refused for an out-of-time challenge lacking both a real prospect of success and a compelling reason for a hearing.

Kenneth Lewis’s 2006 will left his residuary estate to David Lewis alone, disinheriting Peter Lewis. David brought proceedings to establish the validity of the will after Peter alleged undue influence and fraud. Following a lengthy trial, HHJ Seys Llewellyn QC upheld the 2006 will on 6 June 2012.

Peter had Asperger’s syndrome and had initially been represented with the Official Solicitor acting as litigation friend. After public funding was withdrawn, the judge revisited capacity and ruled on 8 November 2011 that Peter could conduct the proceedings without a litigation friend. Peter sought permission to appeal, challenging that ruling, the use of oral expert evidence, and the decision to proceed without representation. The application was substantially out of time. The central issues were whether the capacity ruling involved any arguable error and whether later material from the Carmarthenshire case justified appellate intervention.

Permission and capacity

1. Permission refused. The challenge to the 8 November 2011 capacity ruling was made many months out of time. No grounds for an extension were advanced or established. Even if time were extended, the proposed appeal had no real prospect of success and there was no compelling reason for it to be heard.
2. The court put aside the procedural difficulty that a person claiming to lack capacity could not ordinarily pursue the application without a litigation friend, and considered the application on its substantive merits. The court had sufficient expert material and Peter had been given a full and fair opportunity to present his case.
3. The judge was entitled to revisit capacity when the circumstances of representation changed. He was also entitled to require Dr Jones to give oral evidence because his earlier written report did not expressly address the statutory criteria under sections 1 and 3 of the Mental Capacity Act 2005. The judge considered each criterion and the overall evidential picture. His conclusion that the statutory assumption of capacity had not been displaced was reasonably open to him.
4. Capacity assessment required due regard to hidden cognitive, social and communication difficulties. Apparent articulacy in court was not determinative. The evidence could properly be assessed differently according to whether information was received orally or in writing and whether Peter was in court or elsewhere.
5. The Carmarthenshire case provided no basis for challenge. Permission to appeal in that unrelated matter had concerned the proper handling of capacity, and the appeal ended by consent without a considered Court of Appeal decision that Peter lacked capacity. Dr Robertson’s later report post-dated the ruling, added no material analysis beyond the evidence considered with Dr Jones, and could not realistically have altered the result. It therefore did not warrant admission as fresh evidence under rule 52.11(2)(b) of the Civil Procedure Rules.
6. The protective measures adopted at trial, including video-link facilities, staged evidence, transcripts, judicial questioning and written closing submissions, were sufficient to secure a fair trial for both parties.

• Court of Appeal (Civil Division): on 8 April 2014 refused Peter Lewis permission to appeal against the capacity ruling and the order upholding the 2006 will.
• High Court of Justice, Chancery Division, Cardiff District Registry: HHJ Seys Llewellyn QC ruled on 8 November 2011 that Peter had capacity to conduct the proceedings and, following trial, upheld the 2006 will by order dated 6 June 2012.