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Ally Tow
Ally Tow,
SENIOR ASSOCIATE - CHARTERED LEGAL EXECUTIVE
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Capacity, but not as we know it?
28 April 2021

Normally when writing articles relating to the question of capacity I am reviewing a case where the court had to consider whether the testator had the requisite testamentary capacity to execute their will. Unusually, in the recent case of Wickham V Riley & Ors [2020] the court was asked to determine whether the claimant, Alexander Wickham (“Alexander”) had had capacity to discontinue proceedings he had issued with his twin sister, Isabelle under and Inheritance (Provision for Family & Dependants) Act 1975 (“the Act”) following the death of their father, Anthony John Wickham (“Anthony”) and if so, whether he should be granted permission to extend time to bring a fresh set of proceedings, the primary limitation period having expired.

The claim

Alexander and Isabelle were the children of Anthony who died on 13 May 2014. They had issued a claim on 16 January 2017 through their litigation friend, Ruth Dore (“Ruth”) as, at the time of issue of the proceedings, they were both still minors, under the Act against William Riley (“William”) and Robert Sibley (“Robert”) who were the personal representatives of Anthony’s estate on the basis that reasonable financial provision had not been made for them in Anthony’s will dated 1 April 2010.

William and Robert were the 1st and 2nd defendants in the proceedings. Matthew John Wickham (“Matthew”), Penny-Ann Wickham (“Penny”) and Lisa Joanne Wickham (“Lisa”) were also named as 3rd, 4th and 5th defendants. Matthew and Penny were sued as beneficiaries of the estate and Lisa, the twins’ mother was sued as a trustee and beneficiary of the estate.

Following issue of the proceedings, the matter came before the court for a directions hearing. At the time, all parties, save for Lisa, had agreed terms to settle the claim. Lisa had indicated that she wished to consider her tax position under the suggested terms before consenting to the same. Mr Justice Cohen recorded that he was satisfied the disposition of the estate under the terms of the will were not such as to make reasonable financial provision for the twins, that the suggested agreed terms were for the benefit of them and that the court approved of the terms.

Accordingly, he stayed the proceedings until 27 November 2018 to enable Lisa to provide her consent to the terms and directed that if a further copy of the agreed terms bearing the signed consent of all defendants (including two further additional parties) then the terms of settlement would come into effect. If a signed copy were not filed then the matter would be listed for further directions.

Discontinuance of the proceedings

On 21 January 2019 Alexander emailed the solicitors acting for Matthew and Penny to advise them that he and Isabelle were withdrawing their claim. This was confirmed to the solicitors by way of a separate email from Isabelle dated 23 January 2019.

On 1 February 2019 the solicitors acting for Ruth issued an application notice seeking a determination as to whether or not the twins remained a protected party whereby the appointment of the litigation friend had not ended.

On 11 March 2019 Alexander then sent a further email to all parties attaching a notice of discontinuance dated 10 March 2019 in respect of his claim. The same day he also sent an email to Matthew and Penny’s solicitors attaching a notice of discontinuance from Isabelle, also dated 10 March 2019. The notices appeared to bear the signatures of the twins.

Ruth’s application

On 13 June 2019 the matter came back before the court in relation to Ruth’s application regarding the question of the twins’ protected status within the proceedings. She was seeking the court’s guidance both on the question of whether Alexander had capacity to conduct the proceedings without a litigation friend and whether the notice of discontinuance was effective, that to some degree depending upon his capacity.

The court appointed the Official Solicitor to act as Alexander’s litigation friend for the purposes of obtaining a report regarding his capacity to conduct the proceedings. That assessment was carried out by Dr Chisholm, an Education and Child Psychologist based at the school where Alexander was a pupil. She concluded that he had capacity to conduct the proceedings. On this basis, the court confirmed in March 2020 that the appointment of the litigation friend had ceased. By this stage, however, Alexander had decided that he did wish to pursue the proceedings after all. Accordingly, the issue arose as to whether he had had capacity at the time he purported to withdraw the proceedings. An update to Dr Chisholm’s report was therefore required to answer that question.

There was also the question of Isabelle’s purported discontinuance of the proceedings that needed to be determined. Isabelle indicated that she too wished to continue with her claim but no formal application had been made by her to reinstate the proceedings and/or for permission to issue a fresh set of proceedings.

Alexander’s capacity

Alexander suffered from autism spectrum disorder would could amount to an impairment or disturbance in his mind or brain. Upon further assessment, he told Dr Chisholm that the reason why he had initially withdrawn his claim was because under the proposed settlement his mother would be liable for payment of costs. He said she had asked him why he was seeking money when it would mean she would end up with a legal bill and the reality was he would inherit her money when she died. Alexander informed Dr Chisholm that whilst he typed the email which he had sent to Matthew and Penny’s solicitors confirming his withdrawal of the proceedings, it was Lisa who told him what to put in the email.

As to the question of why he now sought to reinstate his claim, he responded by saying “Because it would have cost my Mum but now her money has been frozen, so it makes perfect sense.”.

Dr Chisholm did not feel able to give a definite response as to Alexander’s capacity upon re-examination but confirmed that whilst an individual’s capacity can fluctuate the information she had gathered was not indicative of any concerns or events to that effect.

The Law

When considering the application, the court had to have regard to the law on the question of capacity, the law as regards extensions of time and the relevant parts of the Civil Procedure Rules 1998 (“CPR”) insofar as they related to the question of discontinuance.

Capacity

As to the question of capacity, the principles of Part 1 of the Mental Capacity Act 2005 are as follows:

(1)    The following principles apply for the purposes of this Act.

(2)    A person must be assumed to have capacity unless it is established that he lacks capacity …
(4)    A person is not to be treated as unable to make a decision merely because he makes an unwise decision.”

The court considered that Alexander’s decision to file the notice of discontinuance was probably unwise but that did not affect his decision on capacity which the court considered he had at the time.

Discontinuance

As to the question of discontinuance, CPR Part 38 provides as follows:
“38.2(1)   A claimant may discontinue all or part of a claim at any time.

“38.7    A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if

(a)    He discontinued the claim after the defendant filed a defence; and
(b)    The other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.”.

Whilst Alexander had capacity, the court considered he still retained some degree of vulnerability and was, to some extent, reliant upon his mother, in respect of whom there seemed to exist some conflict of interest.  The court was satisfied that Alexander had issued his notice of discontinuance following advice from his mother but for reasons which he had not been able to fully articulate he had subsequently come to the realisation that his decision to discontinue was unsound and that there was a benefit to him continuing the proceedings. The court considered this to be a sufficient ground to support his application.

Extension of time

Having determined that whilst Alexander had had capacity to withdraw from the proceedings, he had sufficient grounds to bring a separate set of proceedings, the court then turned its attention to the question of an extension of time.  Section 4 of the Act provides:

An application for an order under section 2 of this act shall not, except with the permission of the court, be made after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out …”.

In considering any application for an extension of time to bring a claim under the Act the court must have regard, inter alia, to the following points:

  1. How promptly and in what circumstances the applicant has sought the permission of the court after the time limit has expired.
  2. Whether negotiations have been commenced within the time limit.
  3. Whether the estate has been distributed before the claim has been made or notified.
  4. Whether a refusal to extend the time would leave the applicant without redress against anybody.

Having regard to the above points and the evidence before the court, Mr Justice Williams made the following (inter alia) findings as regards the question of an extension of time:

(i)    The administration of the estate had been very significantly delayed as a result of the difficulties which arose following the failure of the settlement in November 2018 and matters thereafter. However, any prejudice caused by the delay in terms of the estate’s assets themselves was being managed. Although the suggested agreed terms were not signed by all parties, the value of the settlement as set out therein supported the contention that Alexander would still have an arguable case under the Act. Furthermore, the prospect of a claim against the estate had been part of the landscape for a long time and indeed, negotiations and the proceedings themselves had been in place for a long time.

(ii)    The evidence before the court as regards Alexander’s financial position also supported an arguable case that an order should be made for financial provision for his maintenance. The court also took into account the fact that if Alexander did not pursue his claim he had no remedy against anybody else.

(iii)    The limitation period under the Act was a pure discretionary one. These proceedings had been ongoing for a considerable period of time. However, given the particular and unusual circumstances of this litigation the finality that the defendants might have expected carried less weight than might be the case in some other forms of litigation – it must have come as somewhat of a surprise to the defendants when the notice of discontinuance was served.

Judgment

Overall, Mr Justice Williams stated that he was satisfied the balance weighed in favour of granting permission to Alexander to issue a further set of proceedings under the Act notwithstanding the expiry of the limitation period. Alexander’s decision to withdraw from the previous proceedings was not a decision taken by a commercial entity after careful consideration but was the decision of a vulnerable 18 year old under the influence of and on the advice of his mother who was his primary carer. Accordingly, the judge granted Alexander permission to issue a further set of proceedings.

As for Isabelle, the judge refused to make any decision in respect of her purported application for permission to make another claim under the Act. She had had eight months in which to seek and obtain legal advice or to undertake some research herself to advance a claim. Despite this, there was no evidence before the court which explained her reasons for discontinuing the claim nor her reasons for now seeking to issue further proceedings and no formal application had been made as regards an extension of time. Accordingly, her claim remains discontinued.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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