Greetham v Greetham (Rev 1)

Capacity to conduct litigation is decision-specific. The statutory presumption of capacity is displaced only where, on the balance of probabilities, the person cannot make the relevant litigation decisions because of an impairment or disturbance of mind or brain.

A proper assessment must address the actual litigation, its issues and the person’s conduct of it. Medical or social-care assessments prepared without significant information about the proceedings may provide no useful assistance. The appointment of a litigation friend also requires compliance with each condition in CPR 21.4(3), including the ability to conduct proceedings fairly and competently. A person who has driven repeated unmeritorious applications, failed to encourage compliance with court orders and withheld relevant information from assessors may be unsuitable.

The claimant and defendant were involved in proceedings concerning the dissolution and distribution of a family farming partnership, linked to matrimonial proceedings. The defendant’s brother applied under CPR 21.6 to be appointed as litigation friend, relying on capacity reports and contending that the defendant lacked capacity to conduct the litigation.

The defendant had previously conducted aspects of the proceedings personally, instructed solicitors and counsel, made applications and appeals, and appeared through counsel at successive hearings. The central issues were whether the statutory presumption of capacity had been displaced and, if so, whether the proposed litigation friend satisfied the conditions in CPR 21.4(3).

1. Capacity. The application was dismissed. Under CPR 21.1(2)(d) and the Mental Capacity Act 2005, capacity had to be assessed in relation to the decision in question. Consistently with Dunhill v Burgin [2014] UKSC 18, capacity was issue-specific rather than global.
2. The presumption in section 1(2) of the Mental Capacity Act 2005 remained decisive unless lack of capacity was established on the balance of probabilities. The reports relied upon had been prepared without significant information about the litigation, including the defendant’s instructions to solicitors and counsel, his pleaded position, applications made in his name, appeals, admissions and representation at later hearings. Those matters were plainly relevant to any useful assessment. The reports therefore provided no useful assistance on litigation capacity.
3. The court accepted that the defendant had mental-health or personality difficulties, but held that the evidence did not displace the statutory presumption. The assertions of the proposed litigation friend, the evidence of the defendant’s partner and the defendant’s written authority to his partner did not materially advance the case.
4. Suitability of the proposed litigation friend. The court considered the issue in the alternative. Even if incapacity had been established, the proposed litigation friend failed CPR 21.4(3)(a). His conduct involved repeated unmeritorious applications and appeals, further costs orders, no demonstrated effort to encourage compliance with outstanding orders, and failure to provide assessors with relevant information. He would therefore be unsuitable to conduct the proceedings fairly and competently.
5. There was no dispute that the condition concerning adverse interests was satisfied. The costs undertaking had properly been deleted because the defendant was sued as a defendant. If the proposed litigation friend intended to pursue wide-ranging fraud claims in substance as claimant, however, an undertaking under CPR 21.4(3)(c) would have been necessary. The application dated 21 January 2021, and the associated applications, were dismissed. The earlier application dated 21 December 2020 was also dismissed because there was no basis for using the procedure for becoming a litigation friend without a court order.

The judgment describes extensive earlier procedural steps, including orders made in the partnership proceedings, unsuccessful applications to set aside and appeals, enforcement proceedings and contempt proceedings. The present decision was a first-instance determination of the applications for appointment as litigation friend. The applications were dismissed.