TP v PRBP, Court of Appeal - Family Division, July 26, 2018, [2018] EWHC 2433 (Fam)

Resolution Date:July 26, 2018
Issuing Organization:Family Division
Actores:TP v PRBP


Neutral Citation Number: [2018] EWHC 2433 (Fam)

CaseNo. BV17D21360



Royal Courts of Justice

Date: Thursday, 26 July 2018



(In Public)

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B E T W E E N :

TP Applicant

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PRBP Respondent

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MR N. CUSWORTH QC and MR R. WALFORD and MR S. LITTLEJOHNS (instructed by Payne Hicks Beach) appeared on behalf of the applicant.

MISS T. SCOTT QC (instructed by Farrer & Co. LLP) appeared on behalf of the trustees of the Estate

The respondent husband acts in person but did not attend

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J U D G M E N T (As approved by the judge)


1 The situation with which I have been faced yesterday and today is both sad and tragic. A family which appears once to have been a happy and united family, with every advantage that great wealth can provide, appears, in the last year or so, to have torn itself apart.

2 There was listed for so-called final hearing this week the wife's substantive application for financial remedy orders. A time estimate had been given of three days. So, tomorrow was the last day of the estimated hearing. Tomorrow is also the last day of the last full week of this year's legal sittings before the summer vacation. Quite frankly, it was self-evident to me from the very outset yesterday that there was not the slightest prospect of this case being concluded this week, including a reasonable amount of time for preparation and delivery of judgment in the three days allowed. I personally am fully listed next week, after which I personally begin six weeks of uninterrupted holiday. So, this case was incapable of being finished this week and I could not, therefore, embark upon full substantive hearing of it.

3 In the event, I have been constrained to adjourn this case not part-heard. I hope that good use was made of this hearing by the process this morning of hearing evidence from Mr Mark Southern, the finance director of the Estate, of which the husband is a significant beneficiary. A verbatim transcript will obviously be made of all that evidence and that part of the hearing today at which Mr Southern and leading counsel for the trustees, Miss Tiffany Scott QC, were present. It can clearly stand as evidence at the final hearing for such use of it as either party or, indeed, the trustees themselves may wish.

4 There is, however, a completely separate and discrete reason why, in any event, I would have felt constrained to adjourn the present hearing, even if there was ample time allowed. That relates to the capacity of the respondent husband. To set this in context, Part 15 of the Family Procedure Rules 2010 has the effect, in summary, that if a party to litigation such as this is a ``protected party'', then he must have a litigation friend to conduct the proceedings on his behalf and, indeed, save with the permission of the court, no further steps may be taken in the proceedings until the protected party has a litigation friend. I wish to stress that the scheme of the rules is that once the court has determined, or it is apparent, that a party lacks capacity and is a protected person, then he must have a litigation friend. There is no remaining residual discretion in the court, however disadvantageous it may be to the other party to suffer the delay which may follow.

5 In many situations it is self-evident that a litigant is, or has become, a protected party; for example, if a litigant suffers some catastrophic stroke or severe road accident such that he loses consciousness or any effective power of reasoning and decision making. Situations like that, frankly, are the easy ones. Much, much harder for the court to deal with is situations in which there is material suggesting that a party may lack capacity, but the question is, or may be, a borderline one. That is particularly so when, as not infrequently happens, a person who, in fact, lacks capacity, for example because of delusions or paranoia, nevertheless strongly protests that he does have capacity and that the facts are not as they are alleged to be. Clearly, a court should not unjustifiably start questioning a person's capacity or unjustifiably and unnecessarily delay proceedings while there is some investigation into capacity. That is particularly the case because of the assumption in section 1(2) of the Mental Capacity Act 2005 that:

``A person must be assumed to have capacity unless it is established that he lacks capacity.''

On the other hand, a court must also be careful in situations...

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