Fox v Wiggins & Ors

A party is presumed to have capacity unless cogent evidence establishes, on the balance of probabilities, an impairment or disturbance of mind or brain causing inability to conduct the particular litigation. The evidence must address the statutory diagnostic and functional tests, relevant practical assistance, and the person’s capacity at the material time. A default judgment may nevertheless be set aside where the defendant has another good reason to defend, particularly in serious defamation proceedings where truth is proposed and the claim alleges a coordinated campaign. The court should consider the interaction between Civil Procedure Rules 1998 rules 13.3 and 3.9, including promptness, the seriousness of the default, its explanation and all the circumstances. A claim involving alleged co-conspirators should ordinarily be tried on its merits where leaving the default judgment in place risks inconsistent verdicts.

The claimant brought defamation and harassment proceedings against six defendants concerning online allegations of sexual, physical and emotional abuse. Judgment in default was entered against the sixth defendant after she failed to file a defence and failed to comply with an order requiring evidence of incapacity. Her mother later became litigation friend and applied for a declaration that the defendant lacked capacity, setting aside of the default judgment and relief from sanctions.

The capacity application relied mainly on two brief psychiatric letters and evidence from the defendant’s mother. The set-aside application relied on proposed truth and other defences, the seriousness of the allegations, and the fact that the claim against the other alleged participants in the campaign remained to be tried. The central issues were whether incapacity had been proved and, if not, whether the default judgment should nevertheless be set aside.

1. Capacity. The application for a declaration of incapacity failed. Under sections 1 to 3 of the Mental Capacity Act 2005, capacity is presumed. The applicant had to show, on the balance of probabilities, that an impairment or disturbance of mind or brain caused inability to understand, retain, use or weigh relevant information, or communicate a decision, in relation to conducting the proceedings.
2. The medical evidence did not overcome that presumption. The letters were brief, substantially repetitive and largely asserted an inability to weigh information without analysing the diagnostic test, the functional test or the practicable steps required by section 1(3). There was no sufficiently current evidence addressing capacity at the hearing. The mother’s evidence was accepted as sincere but did not establish inability to give instructions or address possible assistance. The court also had to consider contradictory evidence and avoid a protective outcome unsupported by objective evidence.
3. Default judgment. The defendant had not shown a real prospect of successfully defending the claim under CPR r 13.3(1)(a). No defence, draft defence or evidence addressing the serious allegations had been provided. However, CPR r 13.3(1)(b) was satisfied. The proposed plea of truth, the seriousness of the allegations and the vindication issues in defamation proceedings constituted another good reason to permit a defence.
4. Relief from sanctions. The defaults were serious and significant, and the application was not prompt. The absence of legal representation did not justify a lower standard of compliance where the relevant order and procedural obligations were understood. Nevertheless, applying the three-stage approach in Denton v TH White and considering all the circumstances, the risk of inconsistent verdicts made it unjust to leave the default judgment against one alleged participant while the claim proceeded against the others. The judgment in default was set aside and relief from sanctions granted, allowing the sixth defendant to file a defence.
5. The decision made it unnecessary to determine the regularisation issue in detail.