Carmarthenshire County Council v Lewis

This is a renewed application for permission to appeal, Patten LJ having refused permission on the papers on 11 November 2010. The applicant is Peter Lewis, the defendant in the proceedings, against whom a possession order was made in favour of the respondent, the Carmarthenshire County Council, by Her Honour Judge Vosper QC of premises at 14 Arfryn Avenue, Llanelli of which the applicant had been a secure tenant. The order was made on 27 July 2010 at a hearing which the applicant did not attend. He was in hospital at the time. It appears, however, as I understand Mr Johnson who appears today for him to accept, that he could have attended the hearing if he had wanted to and I will not take time in explaining the circumstances.

The main point sought to be raised on the proposed appeal is that in dealing with and deciding the possession application, Judge Vosper gave no consideration to whether the applicant, who was diagnosed in 2005 as suffering from Asperger’s Syndrome, was a "protected party" for the purposes of CPR Part 21 such that the proceedings against him could not be continued without a litigation friend being appointed for him. Another (although I think probably secondary) point is raised, namely that the judge erred in failing expressly to consider whether it was reasonable to make the possession order that she did.

I record that Mr Johnson is not taking his instructions for the purposes of this application from a litigation friend appointed for the applicant, and it may therefore be said, as Mr Johnson accepted, that there is perhaps some inconsistency there inasmuch as the main point is that it is said that the applicant did not have capacity in the possession proceedings, although it is tacitly recognised that he does have capacity to give instructions for an appeal against the order made in them. Mr Johnson explained how in the circumstances it was not practicable for a litigation friend to be appointed for the purposes of this application. I will say no more about any such inconsistency than that I do not regard it as fatal to the present application.

The applicant was the subject of an assessment in 2005, which identified the nature of his disability, and also of a further assessment made by a psychologist in 2008, who expressed the opinion the applicant would need an independent advocate to represent him in all dealings with the court service and that those dealing and interacting with him would not be able to tell that he suffers from the disability that he does.

There was an important interlocutory hearing in the proceedings before District Judge Thomas on 12 March 2010, of which I have the transcript, which I have read. The applicant took part in that hearing via a video link, although it is not clear to me why that was thought necessary as I understand that he was at the time in another room in the court building. Judge Thomas expressed concern at the outset of the hearing as to the applicant's capacity to deal with the proceedings, although the transcript suggests that he took a positive and combative role in them. In fact, he left the room in which he was before the hearing was concluded.

The outcome was that Judge Thomas made an order that unless the applicant allowed an examination of himself by a particular specialist by a specified date, he was to be debarred from defending the claim. The applicant had asserted to Judge Thomas that the chosen specialist was unqualified for the task and he declined to permit the examination. He sought to set the order aside and that and other applications came before Judge Vosper together with the substantive possession application. Judge Vosper, in her judgment, referred amongst other things to the hearing on 12 March 2010 and had before her the assessments of the two specialists to which I have referred. But she did not expressly consider the question of the applicant's capacity to defend the proceedings and simply made the possession order that was sought.

The case does cause me some concern. On one view, judged for example by his contribution to the hearing before District Judge Thomas, the applicant was arguably equal to dealing with the claim and had the necessary capacity to do so. On another view, I am sensitive to the anxiety that Judge Vosper was not in a position to be satisfied about his capacity: because if and so far as there is the possibility of an inference from the transcript of the proceedings before Judge Thomas that Judge Thomas was satisfied that the applicant had the capacity to cope with the litigation, how was Judge Thomas qualified to form that view? I add that I am not in fact satisfied that Judge Thomas did form such a view.

In my view 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 in fact 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.

I regard that consideration as sufficient to justify the giving of permission to appeal and I will do so. I propose also to direct that the appeal be expedited, since I consider that, in circumstances in which the applicant chose not to attend the hearing before Judge Vosper, it would be unjust to the respondent to defer its opportunity of recovering possession for longer than is absolutely necessary. Patten LJ ordered a stay of execution of Judge Vosper's possession order, which I understand to relate to paragraphs 4, 5 and 6 of that order, until after the disposal of this application today. I will continue the stay of execution of paragraphs 4, 5 and 6 of Judge Vosper's order of 27 July 2010 until after judgment on the appeal or further order in the meantime. I will also expressly permit the respondent, on 48 hours’ notice to the applicant's solicitors, who are Salter Kelly Solicitors, to apply to vary or discharge that stay.