A delicate line – litigation friends and P asserting litigation capacity

A Court of Protection judge recently heard an appeal against a ruling that a man lacked capacity to conduct proceedings. The CoP team at 39 Essex Chambers report on the outcome.

The case of DM v Dorset County Council [2019] EWCOP 4 (Roberts J) is a (relatively) rare decision about capacity to conduct proceedings. It concerns an application for permission to appeal a determination of HHJ Dancey that a man, DM, lacked capacity to conduct proceedings as to whether a property and affairs deputy should be appointed for him. Having heard evidence from a special visitor who had reported pursuant to s.49 MCA 2005, HHJ Dancey had declared himself satisfied that DM

2. […] lacked capacity to litigate on his own account in the context of these ongoing proceedings because he was suffering from an impairment of, or disturbance in, the functioning of his mind or brain arising out of a persistent delusional disorder, as diagnosed by Dr Barker. The judge’s principal concern, as explained in his judgment, was DM’s inability to use and weigh information in the context of decision-making. The judge specifically  identified what he perceived as an incapacity to engage in the overall decision-making process inherent in the litigation in terms of DM’s lack of ability to see the various aspects of the arguments and to relate the one to the other in a rational and considered manner. 

The rather complex procedural history of the case reveals one important feature noted by Counsel then acting (via his litigation friend) for DM at the hearing before HHJ Dancey: 

The appointment of a litigation friend where P asserts that he has capacity to conduct proceedings and no final determination of litigation capacity has been made is unusual, and the role of that litigation friend at a hearing which will determine that sole issue is therefore complex. 

At the hearing at which the court determined that DM lacked capacity to conduct the proceedings, his litigation friend had made clear that he:  

[Has] come to the conclusion that he cannot advance that positive case [i.e.  that DM has capacity to conduct these proceedings without the imposition of a litigation friend]; does not consider that he can or should advance a positive case contrary to the one which [DM] wishes: if his appointment is upheld, he will have an ongoing duty to present [DM’s] case fairly and it will as a practical matter be harder to secure any engagement with [DM] if he feels those acting for him have already acted against him over this issue.” 

Not least as DM then sought to bring his own appeal, acting in person, against the determination that he lacked litigation capacity, his litigation friend then felt sufficiently compromised that he did not wish to continue in the role. Although he had not formally been removed from the court record, the Official Solicitor was then invited to take over the role. The Official Solicitor made a similar evaluation of the position to the former litigation friend, and confirmed that no positive case could be advanced on DM’s behalf in support of DM’s application. 

On the facts of the case, Roberts J had little hesitation in finding that there was no prospect of overturning the decision of HHJ Dancey (and indeed certifying the application as entirely without merit). Although DM was a highly intelligent and articulate individual, who had for many years had a successful practice as a solicitor in a London law form, it was clear (for reasons that we do not reproduce here as we see no reason to share more details of his life than necessary) that he suffered from persistent delusional disorder rendering him incapable of using and weighing the information necessary to conducting proceedings.   

Comment

Roberts J did not directly comment upon the approach that was taken by DM’s litigation friend and then the Official Solicitor, but appears implicitly to have endorsed it. We suggest that this must be the only appropriate approach that can be adopted where the individual concerned wishes to maintain that they have capacity to conduct proceedings, but the litigation friend genuinely believes that they do not. [1]

On a nerdy procedural point, it is not obvious on the face of the judgment why Roberts J felt that she was governed by the CPR in terms of the test to apply for permission to appeal or the making of anonymity orders, as both of these are matters covered within the Court of Protection Rules 2017 (in the case of the former, COPR r.20.8).

This article was written by the Court of Protection team at 39 Essex Chambers.

[1] For further discussion of what litigation friends can and should do, see the article by Alex Ruck Keene, Neil Allen and Peter Bartlett on Litigation Friends or Foes? Representation of ‘P’ before the Court of Protection.