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No second bite at the cherry - High Court rejects back door challenge to capacity decision

Werrett v Evesham & Pershore Housing Association Ltd [2015] EWHC 1060 (QB)

The High Court has rejected an attempt by a defendant of possession proceedings to appeal a decision not to revoke an order that he has capacity to conduct proceedings.

In a detailed judgment, disposing of a rolled-up appeal and permission application, Nicol J held that an order to the effect that Mr Werrett had - and at all material times had had - capacity to conduct the proceedings, had been a final order. HHJ Harington had been right, therefore, to find that Mr Werrett could not use Rule 3.1(7) CPR to revoke it, after obtaining better evidence from a psychologist. In any event, Nicol J held, HHJ Harington had been right to find that Mr Werrett's new evidence did not establish that he lacked capacity to conduct the proceedings.

Dean Underwood, instructed by Robert Whitehouse of Shakespeares LLP, represented the respondent housing association in both the High Court and the proceedings below.
The proceedings below

The issue of Mr Werrett's capacity arose at a late stage in County Court proceedings. In January 2014 Mr Werrett, who had suffered brain damage in childhood, admitted causing his neighbours a nuisance and annoyance. With advice, he agreed to an injunction under section 153A of the Housing Act 1996 and a suspended order for possession of his home. The court approved both orders.

Mr Werrett then breached the injunction and possession order, resulting in findings of contempt and an eviction appointment. Shortly before the eviction, Mr Werrett's representatives filed evidence from a consultant psychiatrist contending that, because of his brain injuries, Mr Werrett did not – and had never had – capacity to conduct the proceedings. His proposed litigation friend, the Official Solicitor, intended to apply to set aside both the possession order and injunction.

At a contested hearing in May 2014, HHJ Harington found that the psychiatrist's report, which did not address the Mental Capacity 2005 Act, did not establish a lack of capacity. On the contrary, given his active part in proceedings, Mr Werrett had demonstrated capacity at all material times.

Mr Werrett's representatives did not appeal. In July 2014, they applied to vary or revoke the judge's order, under Rule 3.1(7) CPR, relying on new and better evidence from a consultant psychologist. Again, their ultimate intention was to set aside the possession order and injunction.

The housing association argued that Harington HHJ's order of May 2014 had been a final order and that Mr Werrett could not therefore use Rule 3.1(7) CPR to vary or revoke it: Roult v North West Strategic Health Authority [2010] 1 WLR 487 (CA) and Kojima v HSBC Bank plc [2011] 3 All ER 359 (Ch). Instead they should have appealed and applied for permission to adduce fresh evidence in accordance with well-established principles.

In the alternative, applying Tibbles v SIG plc (t.a. Asphaltic Roofing Supplies) [2012] 1 WLR 2591 (CA), there had been no material change of circumstances since the hearing in May 2014: Mr Werrett's condition had not changed any; he had simply obtained evidence from the psychologist that he could have obtained from his psychiatrist in May 2014.

In any event, while the psychologist had completed a certificate of capacity, ticking proforma conclusions that Mr Werrett lacked the abilities described by section 3 of the 2005 Act, the psychologist's reasons did not bear out the conclusions; and Mr Werrett had proved his capacity by participating actively in the proceedings: filing a defence, agreeing to an injunction and possession order, admitting breaches, applying to stay his eviction and filing two detailed witness statements.

At a contested hearing in July 2014, HHJ Harington found for the association in all three arguments.

The High Court appeal
By his grounds of appeal, Mr Werrett argued that: (1) the judge had been wrong to find that his order of May 2014 had been a final order and that Rule 3.1(7) CPR could not therefore be used to vary or revoke it; (2) applying Folks v Faizey [2006] EWCA Civ 381, the judge had been wrong to allow an adversarial approach to the issue of capacity and should have accepted the psychologist's evidence without more; and (3) if the judge had been uncertain about the psychologist's evidence, he should have adjourned to enable clarification.

In a detailed judgment, Nicol J determined that Mr Werrett's appeal had no real prospect of success and that there was no other compelling reason to grant permission to appeal. The order of May 2014 had been a final order, determining the issue of Mr Werrett's capacity past and present; Mr Werrett could not therefore invoke Rule 3.1(7) CPR to revoke it. If he had been dissatisfied with the order, he should have appealed. Folks v Faizey was an altogether different case, in which the court's decision was premised on the absence of any prejudice to the parties. Here, by contrast, Mr Werrett proposed to undo all steps that had been taken in already lengthy litigation. Further, the judge had not been wrong, in any event, to find that Mr Werrett had capacity to conduct the proceedings.

Comment
The High Court's judgment is a salutary reminder of the need to adduce the best possible evidence at the first available opportunity. In default, parties cannot count on a second bite at the cherry, even in an issue as significant as capacity. The circumstances in which a party may invoke Rule 3.1(7) CPR to vary or revoke an order of the court are limited, particularly so if the order is a final order disposing of issues between the parties.

Moreover, the judgment is a helpful reminder of the significance of the presumption of capacity in section 1 of the 2005 Act. While it is not necessary to establish a complete inability, for example, to understand relevant information, or weigh that information in the balance, an ability to retain information for long enough to make a decision, even if for a short period only, will often be fatal to a claim of incapacity; as indeed will a failure to demonstrate that all practicable steps have been taken without success to help the litigant make the necessary decision: section 1(3). Ultimately, in Mr Werrett's County Court and High Court applications, both statutory hurdles proved insurmountable.

Click here to see the full judgment.