TP v PRBP

Where there are serious grounds for questioning a litigant’s capacity, the court must investigate the issue sufficiently to reach an informed decision, while preserving the statutory assumption that the person has capacity until lack of capacity is established. If the litigant is a protected party, a litigation friend is required and, absent permission, further steps cannot be taken. The court has no residual discretion to proceed simply because appointing a litigation friend would cause delay or prejudice to another party. In a borderline case, the court may invite independent psychiatric evidence, but cannot compel the litigant to obtain or produce it. If evidence is not provided, the court may assess capacity on the material available.

The applicant wife’s financial remedy proceedings were listed for a three-day final hearing. The hearing could not be completed within the allocated time and was adjourned. Separately, material concerning the respondent husband’s mental state, including communications and evidence from people who knew him, raised concerns about whether he had capacity to conduct the litigation.

The husband did not attend the hearing and did not have solicitors on the record, although he appeared to be receiving legal assistance. The court considered whether further investigation of capacity was required, how that investigation could be undertaken, and the procedural consequences if the husband were found to be a protected party.

1. Adjournment. The listed final hearing could not sensibly be completed within the available time and was adjourned, not part-heard. Evidence already heard from the Estate’s finance director could stand as evidence at the eventual final hearing.
2. Litigation capacity. Part 15 of the Family Procedure Rules 2010 requires a party who is a protected party to have a litigation friend. Once it is determined, or becomes apparent, that the party lacks capacity and is protected, the court has no residual discretion to continue merely because the resulting delay would disadvantage the other party (para 4).
3. Investigation in a borderline case. The court must not unjustifiably question capacity or cause unnecessary delay. Equally, it must not decline to investigate where material seriously suggests that the party may lack capacity. The presumption in section 1(2) of the Mental Capacity Act 2005 remained in force; the judge expressed reservations only and made no finding that the husband lacked capacity (paras 5, 19).
4. The material raised a possible issue under section 3 of the Mental Capacity Act 2005, namely whether the husband could use or weigh information as part of the process of making a decision. The court could not compel him to obtain psychiatric evidence. It therefore invited him to obtain a report from an independent consultant psychiatrist, properly informed about the concerns. If he declined, the court would make the best assessment available from the other material (paras 11, 23–24).
5. The judge directed that the capacity hearing should be conducted by the judge who would later conduct the final hearing, and that the capacity issue should be determined before the substantive financial remedy hearing (para 25).