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What to do?


Carmarthenshire CC v Lewis [2010] 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.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


  1. Sam

    So does anyone have the answer of ‘what to do?’

    Pure coincidence that I picked this up straight after coming out of Court with a client that has failed 2 appts for assessment of capacity and failed to turn up at the 2nd adjourned possession hearing this morning.

    The DDJ thinking she was being very helpful has made an order, not quite an unless order but it states to the effect that if the defendant does not co operate with attempts to assess capacity by next hearing (in 14 days), then there will be no further adjournment. She also ordered that we (defendant’s solicitors) shall be removed from the Court record. I think she thought that she was helping us although we didn’t ask to be removed, merely stated that we had no other instructions.

    Question is what we do if she simply won’t be assessed?

    • NL

      In the immediate situation, I’d say seek a stay pending the full appeal hearing in this case. If the CoA does give guidance, hurrah.

  2. S

    The court has to make a decision. They are either satisfied that the defendant has capacity or not. If no capacity, appoint a litigation friend. If capacity, get on with it.

  3. NL

    S – with the utmost respect, nonsense. And this is something solicitors and advisors have to deal with rather more than barristers.

    Rimer LJ is spot on that this is not a decision that the court can or should form its own view on, without more. It is not for the court to ‘be satisfied’ either, that is not the CPR 21/MCA 2005 test.

    It is not easy – if you look at CPR 21 and the requirements of the Mental Capacity Act 2005, there is no ‘overall’ lacking capacity test.

    The questions to be put to, for example, a relevant mental health professional have to be detailed. What is to be answered is whether the party has capacity or not to consider advice and to give instruction in the specific circumstances of this case. It is theoretically possible that someone may have capacity for, for example, a simple rent arrears possession, but not have capacity for a more complex (legal/factual) matter.

    • S

      I accept all of the above but the point I was trying to make, in my rather ineloquent way, was that it is ultimateley a decision to be made by the court and at some point it must make a decision. It can’t just deflect the question indefinitely or avoid making the question by striking someone out.

      Of course in an ideal world it will be informed by expert evidence. I freely accept that a court can’t just look someone in the eye on the morning of a hearing and decide whether or not they have capacity.

      However, there comes a time where the court will have to make that decision and there are times where try as they might there is no evidence, such as appears to be the case here. In this case it appears that the court, as I find is not uncommon, is scared of making a decision. What they did here was just a way of avoiding the quesiton.

      One must not forget that at common law and now under the MCA05 there is an assumption of capacity and that that assumption can only be overriden is assessed as lacking capacity.

      It must surely follow that where a person refuses to provide evidence or undertake an assessment the court must make a decision on the evidence before it as to whether that person has capacity. If there is no evidence, and every opportunity has been given for evidence to be adduced, the court must proceed one way or the other. Not easy, but they must make a decision or else the litigation would never progress.

      • NL

        S – I’m glad we are actually in some kind of agreement. But the circs in which the court must decide and how it should go about it are clearly in need of guidance from a higher court, which is why I welcome the opportunity this appeal presents to do that. My view is that an unless order is simply not a suitable means. Although all the case management tools available to the court are of doubtful utility in such a situation, guidance would stop some of the odder and profoundly unfair ‘solutions’ resorted to by no doubt well-meaning DJs and CJs

  4. Sam

    Guidance is desperately needed from a higher Court. Clearly there are cases where, even without an expert it is quite obvious there’s no capacity. In my current case I drew an inference very early on as it was clear from T’s irrational conduct that T didn’t have the capacity to understand the implications for not claiming benefits that T is entitled to which would meet the rent.

    Despite my assumptions, without an ‘expert’ the court doesn’t look as though it can or will make the decision for me. Now much as the Court thought it might be doing me a favour by taking us off the record, if T doesn’t get assessed T is clearly going to be evicted. Then T will come back as a homeless client, I’ll have the same problem when, in a few months time I’ll be arguing with the local authority.

    One thought on CPR 21. The Court requires ‘evidence to support an application. It doesn’t specify what will do as evidence but Guidance Note to 21 says when inviting the OS the standard certificate of capacity should be used. This can be signed by a g.p I understand. Point is this, if the client won’t co operate, but their conduct in court is so irrational that it would leave any reasonable person to conclude that they didn’t have capacity, then can ‘evidence’ be in the form of the client’s ‘witness evidence’? Then can the Court make a decision?

  5. bm

    Anyone know what has happened to this appeal? The CA’s case tracker says the appeal hearing was vacated. Is it going to be heard at some future date, or is that it?

  6. The.Dark.One

    Any update on what happened in the appeal?


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