Evesham And Pershore Housing Association Ltd v Werrett

A decision determining a party’s capacity to conduct existing litigation, including capacity at earlier stages, may be a final order. Under CPR r.3.1(7), such an order may be varied or revoked only in exceptional circumstances. A later expert report, without a material change of condition or material misstatement at the earlier hearing, will not ordinarily justify reopening the decision.

Capacity is assessed under sections 1 to 3 of the Mental Capacity Act 2005. The court must apply the statutory presumption of capacity and decide whether the evidence establishes inability to understand, retain, use or weigh relevant information, or communicate a decision. Difficulties, reduced efficiency or a short retention period do not necessarily establish incapacity.

The defendant, a tenant, faced possession proceedings, an injunction and alleged breaches of both. He had suffered serious brain injuries and later relied on expert evidence that he lacked litigation capacity. The Official Solicitor offered to act as litigation friend.

At an earlier hearing, HHJ Harington determined that the defendant had capacity, including at all material earlier times. A later application to vary that determination relied principally on further expert evidence. The judge dismissed the application, both because the earlier order was final and because the evidence did not establish incapacity. The defendant sought permission to appeal in a rolled-up hearing before the High Court.

1. Application refused. The defendant had no real prospect of successfully appealing and there was no other compelling reason for an appeal. Permission to appeal was therefore refused.
2. HHJ Harington’s determination of the defendant’s capacity, including his capacity at earlier stages of the litigation, was a final order. The capacity issue had practical consequences for the validity of the suspended possession order, admissions and findings concerning breaches. It was therefore not merely a prospective case-management question.
3. Under CPR r.3.1(7), a final order could be varied or revoked only in exceptional circumstances. The guidance in Tibbles v SIG plc (trading as Asphaltic Roofing Supplies) [2012] 1 WLR 2591 (CA) concerned interlocutory or case-management decisions and was generous to the defendant. There had been no material change in his condition and no material misstatement at the earlier hearing. A further expert report was not enough. The proper route was an appeal from the earlier decision, subject to the rules governing fresh evidence.
4. The claimant was entitled to oppose the application because reopening the earlier capacity finding could have unwound substantial steps in the litigation. The case was materially different from Folks v Faizey [2006] EWCA Civ 381, where appointment of a litigation friend caused no prejudice and the preliminary issue was unnecessary satellite litigation.
5. On the merits, the judge had correctly applied sections 1 to 3 of the Mental Capacity Act 2005. The evidence showed that the defendant experienced significant difficulties, but did not establish that he was unable to perform any statutory decision-making function. The court was entitled to assess the certificates together with the defendant’s demonstrated ability to provide witness statements and participate with legal assistance. The statutory presumption of capacity had not been displaced.
6. The judge was not required of his own motion to adjourn for oral evidence. Both parties were represented, and the defendant had not requested an adjournment for cross-examination of the expert.
7. Any future hearing would require proper allowance for the defendant’s condition. In particular, the court determining penalty for contempt would need to consider its effect on culpability and sanction.

• Gloucester County Court: HHJ Harington determined on 25 July 2014 that the defendant had capacity to conduct the proceedings and had had capacity at all material times. His subsequent application to vary or revoke that determination was dismissed.
• High Court (Queen’s Bench Division): The rolled-up application for permission to appeal, with the appeal to follow if permission were granted, was refused.