D (by His Proposed Litigation Friend, F) v S
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 01 March 2023 |
| Neutral Citation | [2023] EWCOP 8 |
| Court | Court of Protection |
| Docket Number | Case No: 11403416 (Court of Protection) |
[2023] EWCOP 8
THE HONOURABLE Mr Justice Hayden
Case No: 11403416 (Court of Protection)
Case No: LV19D05890 (Family)
IN THE COURT OF PROTECTION
SITTING IN LANCASTER
IN THE FAMILY COURT
SITTING IN LANCASTER
Neil Allen (instructed by Hill Dickinson LLP) for the Applicant (Court of Protection proceedings)
Emma Spruce (instructed by the Hill Dickinson LLP) for the Applicant (Family proceedings)
Dr Julian Sidoli (instructed by Birchall Blackburn Law) for the Respondent (Court of Protection and Family proceedings)
Hearing dates: 15 th February 2023
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Hayden
The judge has given leave for this version of the judgment to be published.
There are two applications before this Court. The first to be determined (in the Court of Protection) relates to a best interests decision in respect of D, who lacks capacity in a wide sphere of decision-taking in consequence of a severe acquired brain injury. The injury which occurred in 2006, resulted in significant physical and cognitive impairment. The second application (in the Family Court), which as will become clear below, is contingent upon the decision in the first, is an application for a decree nisi of divorce.
D married S in August 1998. There is very little in the papers, either in the family proceedings or the Court of Protection statements, which concerns their family life. They have two children, now young adults, P, born in June 2001 and T, born in November 2005. By contrast, there is a great deal concerning the family's financial affairs. D and S became shareholders in a pharmacy company along with D's brother. By June 2006, I am satisfied that there were considerable strains, both within the business and in the marriage. D, whom I am satisfied was living separate and apart from his wife at the time, took an overdose which resulted in the very significant brain injury, which I have referred to above. In October 2007, S petitioned for Divorce on the grounds of adultery. It is important that I record that I have seen no coherent evidence in support of this alleged ground. In 2008 the Court of Protection appointed Mr Niall Baker, a solicitor, as D's Deputy for property and affairs.
In March 2009, S made an application, in the Family Court, for Financial Remedy. On 7 th April 2009, DJ Anson heard the case and concluded that Mr Baker did not have authority to conduct Divorce proceedings on behalf of D. The District Judge invited the Official Solicitor to act as litigation friend for D, see Re W [1971] Ch 123 (determined prior to the present iteration of the Court of Protection). On 15 th July 2009, the Divorce petition and Financial Remedy application were stayed pending the appointment of a Guardian for D. All future applications were reserved to DJ Anson. The Official Solicitor subsequently confirmed that he would accept the invitation if certain criteria were met, i.e., evidence that D lacked capacity to conduct proceedings; there was no other person to act for him and there was security for the Official Solicitor's costs. That security for costs was not provided. Accordingly, the invitation was declined.
On 12 th September 2016, S issued a “supplemental” petition for divorce, on the grounds that the marriage had irretrievably broken down and the parties had been separated for a continuous period, amounting to at least five years. On 13 th December 2018, DJ Anson lifted the stay on proceedings and gave directions which provided for a hearing on the 9 th May 2019. On 9 th May 2019, S's petition for divorce, on the grounds of adultery, dated 3 rd October 2007, was dismissed by consent of the parties.
Nothing was done actively to pursue S's supplemental petition but, in July 2019, an application for Divorce was made by D on the same grounds i.e., 5 years separation. As a matter of chronology, the parties had been living apart for 13 years. D's petition was issued on 3 rd August 2019 and proceedings were transferred to Preston County Court on 1 st October 2019. At that stage, U, D's brother, was identified as his litigation friend. On 14 th October 2019, DJ Anson, who managed to achieve a remarkable degree of judicial continuity in this case over a great many years, further stayed proceedings, having been satisfied that the litigation friend had failed to comply with his duties, as required by PD15A of the Family Procedure Rules 2010. In particular, para. 2.1:
2.1
“It is the duty of a litigation friend fairly and competently to conduct proceedings on behalf of a protected party. The litigation friend must have no interest in the proceedings adverse to that of the protected party and all steps and decisions the litigation friend takes in the proceedings must be taken for the benefit of the protected party.”
This led to an amended application for Divorce, dated 23 rd October 2019, issued on 7 th November 2019. On the same date, DJ Anson lifted the stay and provided for the filing of an answer by S. Notwithstanding her earlier Petition, S responded by contesting that the marriage had irretrievably broken down and challenging D's capacity to pursue the divorce. Having heard S give evidence, I am satisfied that her change of position was entirely motivated to secure what she perceived to be her best financial advantage and that of her children. I have not seen any evidence or heard argument as to why it was thought that such a strategy might be advantageous and have seen no suggestion that it has been effective. Indeed, such evidence as is available suggests it has been disadvantageous both to S and the children.
On 16 th February 2021, F, a longstanding friend of D, put himself forward as D's litigation friend in the Divorce proceedings and signed the necessary certificate of suitability. F has also given evidence before me. It is important that I record my impression of him. He struck me as an essentially decent man. I found him to be thoughtful, reflective, self-critical and genuinely striving to be objective. I noted that he listened very carefully to the entirety of the evidence. He was the only person who was able to bring D's character and personality into the court room. D's son, (P), listened respectfully to what he had to say. He was 5 years of age when his father suffered a brain injury and his sister only 12 months. I formed the impression that F held a real affection for his friend. I sensed that he also, as a young man, had great admiration for him too.
D, it transpires, was a talented sportsman and a really good tennis player. He played regularly and he was manifestly competitive. D and F played together on many occasions. When D was on vacation from university, the two would manage to play three or four times a week. F told me that he could not ever remember winning a match. F sought to mitigate his defeats by explaining that his primary sport was squash! F described D as a handsome man who was charismatic, charming and popular with both men and women. F also told me that he had not visited D since his accident to the extent that he thought he should have. He obviously felt guilty. Though I may be entirely mistaken, I sensed that F found it very hard to see his friend in the diminished state that he has now found himself. Having known D for decades, F told me he felt particularly sorry for D's parents, who have carried the burden and would certainly say the privilege of caring for him. He also said that before D's brain haemorrhage, which is the way the family refers to what has happened to D, he was aware that D and S had become estranged and that neither seemed interested in repairing their relationship. I found that evidence entirely convincing. Even as he told me this, it was clear that F struggled to understand why this obviously attractive, successful young couple, with a beautiful son and a young baby, seemingly made no effort to retrieve their marriage. F's perception may or may not be accurate, nobody truly knows what goes on in a marriage, but I am entirely satisfied that his assessment was genuine.
On 20 th January 2020, DJ Anson phlegmatically listed the matter for yet a further case management hearing on 1 st April 2020. The court directed that U respond to the claim that he should not continue as litigation friend due to his conflict of interests. On 1 st April 2020, DJ Anson further adjourned the hearing to 17 th August 2020 with an order for costs against D. On 17 th August 2020, the court directed the filing of evidence in respect of D's wishes and feelings relating to the divorce, to be prepared by his social worker and to be filed on 9 th March 2021. The order also provided for the instruction of a single joint expert to provide a report addressing D's general medical condition and capacity for decision making by 9 th March 2021.
On 27 th October 2021, District Judge Anson, who has displayed a degree of patience vouchsafed to very few, noted that neither party had complied with the court's orders and redirected that the social work report be filed by 4 th February 2022 and the expert report by 21 st January 2022. The entire timetable for the filing of evidence was also amended and a further hearing listed on the first available date between 14 th March and 29 th April 2022.
On 13 th April 2022, DJ Anson suggested to the parties that consideration be given to making an application to the Court of Protection given that all agreed that the petition had been presented at a time when D may have lacked capacity to make that decision or to conduct proceedings. At that hearing the court...
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