Carmarthenshire CC v Lewis  EWCA Civ 1567
Another tug of the forelock to 'Recent developments in housing law' in Legal Action for this one, apparently unreported elsewhere. [Update 14/03/11 - we've had a message from Carmarthenshire on this case, see below.] [update 22/03/2011 Now on bailii, link added.]
This was a permission to appeal hearing and the full appeal is forthcoming. It bears on the considerable difficulties arising from questions of whether a party has capacity under CPR 21. As most practitioners will no doubt have experienced, this is never an easy situation, with tricky questions of judgement involved. However, the rule is that no further steps after issue may be taken against a protected party without the appointment of a litigation friend.
Mr Lewis was Carmarthenshire's secure tenant. He had been diagnosed with Asperger's Syndrome in 2005. Carmarthenshire brought possession proceedings. At an interlocutory hearing, DJ Thomas became concerned about Mr Lewis' capacity to conduct proceedings (presumably he was in person).
The DJ ordered Mr Lewis to allow an examination by a named specialist by a specified date, failing which he would be debarred from defending the claim. Mr Lewis did not comply with the order or attend the subsequent trial, at which a possession order was made. The DJ at that hearing did not consider whether Mr Lewis was a protected person under CPR 21.
On renewed application for permission to appeal by Mr Lewis, Rimer LJ granted permission. He observed that:
... the problem raised by this case is as to how, once the court is possessed of information raising a question as to the capacity of a litigant to conduct the litigation, it should satisfy itself as to whether the litigant does indeed have sufficient capacity. I cannot think that the court can ordinarily, by its own impression of the litigant, safely form its own view on that. Nor am I impressed that the solution is the making of an 'unless' order of the type that Judge Thomas made. The concern that I have about this case is that an order may have been made against a party who was in fact a 'protected party' without a litigation friend having been appointed for him. The potential importance of the case is as to the procedure that, in cases such as this, the court ought to follow with a view to ascertaining the capacity of the litigant.
Expedited appeal ordered.[14/03/11 - Solicitors for Carmarthenshire have contacted us about this report. We are informed that both the purpose of the unless order at the interlocutory hearing at first instance and whether Mr Lewis' capacity was indeed an ongoing issue are actively disputed by Carmarthenshire. As it appears that these will be live issues on the appeal, we will not be commenting further.]
I think Rimer LJ makes a thoughtful and important point here. It is, of course, potentially extremely difficult for a court to take steps to try to resolve the issue of capacity, not least because if capacity is lacking, no further steps in litigation should be taken without a litigation friend. Without pre-judging the full appeal, it has to be very doubtful that an unless order could really be the appropriate way to proceed, not least because a failure to comply with such an order could hardly be taken as an indicator of capacity.
I hope that the Court of Appeal take up Rimer LJ's suggestion and do address the difficult question of the appropriate procedure for the court to adopt in such circumstances.