This case involves a long-running matrimonial dispute between former husband and wife. The background to the dispute can be found in the 2017 judgment here. Mr Justice Mostyn handed down judgment for this matter on 19 January 2021, and the headline events are set out at paragraphs 3 i) to xiv) of his judgment.

At the PTR on 21 December 2021, which was held remotely through Microsoft Teams, the wife sought permission to be assisted by a McKenzie friend. The Judge allowed this and allowed the McKenzie friend to address the court, as the wife was unable to attend herself due to suffering from mental illness.

This raised the question of whether the wife had lost the capacity to conduct the litigation as she was self-representing.

If the wife had lost the capacity to conduct the litigation, then, under the Family Procedure Rules (FPR), r.15.2, she was required to have a litigation friend to conduct the proceedings on her behalf and under FPR, r 15.3, the proceedings had to be stopped until the question had been determined, and, if capacity had been lost, the appointment of the litigation friend had to be made.

In this matter the key issues for determination were:

  1. Whether the wife had lost the capacity to conduct proceedings without legal representation, even with the support of a McKenzie friend?
  2. Whether the husband’s variation applications should be adjourned?


Legal framework

The McKenzie friend acting on the wife’s behalf detailed the wife suffering from severe stress, depression, sleep deprivation, trauma, panic attacks and potential self-harm. The wife had a consultation with a consultant psychiatrist, Dr Bell, to help the Court determine the above issues.

It became clear at the start of the hearing that there was nobody put forward to be a litigation friend on the wife’s behalf if she was deemed not to have capacity. This would mean the Official Solicitor would have had to have been instructed if necessary.

Section 2 and 3 of the Mental Capacity Act 2005 detail the test for incapacity:

2- People who lack capacity

  • For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
  • It does not matter whether the impairment or disturbance is permanent or temporary.
  • A lack of capacity cannot be established merely by reference to:
  • a person’s age or appearance, or
  • a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
  • In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.

3- Inability to make decisions

  • For the purposes of section 2, a person is unable to make a decision for himself if he is unable:
  • to understand the information relevant to the decision,
  • to retain that information,
  • to use or weigh that information as part of the process of making the decision, or
  • to communicate his decision (whether by talking, using sign language or any other means).
  • A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
  • The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
  • The information relevant to a decision includes information about the reasonably foreseeable consequences of—
  • deciding one way or another, or
  • failing to make the decision.

Furthermore, it is stated in Court of Protection Practice 2020 at 1.340, that the analytical process when determining a question of capacity is in three stages as follows:

  • Is the person unable to make a decision? If yes:
  • Is there an impairment or disturbance in the functioning of the person’s mind or brain? If yes;
  • Is the person’s inability to make the decision because of the identified impairment or disturbance?

In this case, the wife was presenting with mental illness which was preventing her from engaging in the proceedings.

In Levy v Ellis-Carr & Ors [2012] EWHC 63 (Ch) Norris J laid down at paragraph 36 the evidential requirements which should be met should a medical reason for an adjournment be advanced:

  • the evidence should identify the medical attendant and give details of his familiarity with the party’s medical condition (detailing all recent consultations);
  • the evidence should identify with particularity what the patient’s medical condition is and the features of that condition which (in the medical attendant’s opinion) prevent participation in the trial process;
  • the evidence should provide a reasoned prognosis; and should give the court some confidence that what is being expressed is an independent opinion after a proper examination.

Dr Bell gave oral evidence and he concluded that the wife would have the capacity to make the relevant decisions if, and only if, she had the benefit of legal advice and representation. He did not think the wife would be capable of navigating the legal complexities of each scenario without it. He considered that by acting alone the wife would be disabled by her medical condition from being able to make the necessary decisions [paragraph 22].

The classic test for capacity to conduct litigation is found in the decision of the Court of Appeal in Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889, [2003] 1 WLR 1511. At paragraph 75 Chadwick LJ held:

“…the test to be applied….is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisors and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law whether substantive or procedure should require the imposition of a … litigation friend.”

Baroness Hale DPSC in Dunhill v Burgin [2014] UKSC 18, [2014] 1 WLR 933 at paragraph 17 stated:

“Equally, of course, those words [of Chadwick LJ at [75]] could be read in the opposite sense, to refer to the advice which the case required rather than the advice which the case in fact received. In truth, such judicial statements, made in the context of a different issue from that with which we are concerned, are of little assistance. But they serve to reinforce the point that, on the defendant’s argument, the claimant’s capacity would depend on whether she had received good advice, bad advice or no advice at all. If she had received good advice or if she had received no advice at all but brought her claim as a litigant in person, then she would lack the capacity to make the decisions which her claim required of her. But if, as in this case, she received bad advice, she possessed the capacity to make the decisions required of her as a result of that bad advice. This cannot be right.”

The capacity to conduct proceedings cannot depend on whether the party receives no legal advice or good or bad legal advice. A party capable of making necessary decisions with the benefit of legal advice have the capacity whether they benefit from the advice or not.


Decision and the future 

All parties accepted that the criteria to adjourn on medical grounds were met [paragraph 39], and the Judge granted the adjournment on the basis that it would be singularly unfair and potentially traumatic and damaging to the wife’s core health status were the case to proceed on Thursday [paragraph 40].

The variation applications will be re-fixed on a date convenient to Counsel, and this adjournment should allow sufficient time for the wife’s new legal representatives to undertake their preparation for the next hearing.

The outcome in this matter demonstrates that the Court is required to keep the parties’ ability to participate fully in proceedings under constant review, particularly when they are not legally represented.

The full judgment can be found here.


Rachel Norgate