George Major (by His Litigation Friend Katherine Gee) v Kalaivani Jaipal Kirishana
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cotter |
| Judgment Date | 30 June 2023 |
| Neutral Citation | [2023] EWHC 1593 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: QA-2021-000148 |
[2023] EWHC 1593 (KB)
Mr Justice Cotter
Case No: QA-2021-000148
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
On appeal from the order of His Honour Judge Luba KC dated
4th June 2021 County Court case No F85YX110
Royal Courts of Justice
Strand, London, WC2A 2LL
Theo Lester (instructed on a direct access basis) for the Appellant
Armit Karia (instructed by Taylor Rose Solicitors) for the Respondent
Hearing dates: 28 th April 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 30 June 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This is an appeal from an interim case management decision of His Honour Judge Luba KC made on 4 th June 2021.
For ease of reference (and because I found the references to the Appellant in the skeleton arguments to be inconsistent and confusing) I shall refer to the Appellant before me (and the Defendant and protected party in the claim) by his name; Mr Major and the litigation friend by hers; Ms Cowell, (as she was before she recently married). I shall refer to Ms Kirishana as the Respondent.
Mr Major challenges the order of His Honour Judge Luba KC dismissing the application made by Ms Cowell to be discharged from her position as litigation friend of Mr Major. Ms Cowell stated that she had developed mental health issues, could not cope with the stress of the litigation, could not properly discharge the role of litigation friend and no longer consented to the role. The Judge also ordered that Mr Major pay the costs of the unsuccessful application.
After Ms Cowell's application was dismissed the claim proceeded to trial before His Honour Judge Raeside KC on 3 rd–4 th August 2021, who entered judgment for the Respondent against Mr Major (who could not give evidence as he lacked capacity). The Judge also ordered that Mr Major pay the costs of the trial on an indemnity basis. This order (“the trial order”) has not been appealed (or otherwise been the subject of an application to appeal).
This appeal came before Mr Justice Freedman for a permission hearing on 15 th and 16 th December 2022. I need not descend into the detail of why the hearing lasted for longer than a day. He gave permission to appeal on each of the five (amended) grounds of appeal. The effect of the appeal on the trial order, what was described in argument as the “ materiality question”, was raised and adjourned for consideration at the main appeal, together with an application made by Ms Cowell to adduce fresh evidence (a further witness statement). Subsequently Mr Karia raised the materiality question (and that the appeal was now academic) within a respondent's notice. In a skeleton in response Mr Lester argued that if the appeal was successful and the order of His Honour Judge Luba KC set aside that the trial order should (or at least could) also be set aside.
Mr Justice Freedman gave a time estimate of one day for the appeal. Subsequently the Respondent lodged an electronic and hardcopy bundle running to 1194 pages. I also have four appeal bundles and three bundles of authorities. The Appellant's skeleton argument was filed on the morning of the hearing and was 29 pages. The Respondent's skeleton argument extending to 26 pages.
I indicated at the outset that given the extent of the issues covered within the Appellant's and Respondent's notices and the skeleton arguments, which would require substantially more than a day of Court time, even when taken efficiently, I would first deal solely with the five grounds of appeal against the order of His Honour Judge Luba KC. To consider the materiality question before doing so (as Mr Karia had suggested in his skeleton) would be to place a complex and sizeable cart before the horse. If the appeal against the order of His Honour Judge Luba failed then materiality did not arise. If it succeeded then the parties should have the opportunity to consider their positions given that there is no appeal notice in respect of the trial order and also the comments of His Honour Judge Raeside as to what he thought the implications would be for the trial before him 1.
The underlying claim
Mr Major and the Respondent were in a relationship. Mr Major had mental health issues. In 1982 he was diagnosed with developmental dysphasia (expressive type). On 20 th July 2011 it was discovered that he had a pituitary Adenoma (a brain tumour) which was removed. On 9th April 2018 he was diagnosed with a bipolar affective disorder Type 2, and a generalised anxiety disorder. The then treating Doctor found Mr Major to exhibit a range of difficulties including:
a) Communication/speech – his speech was stilted and he struggled to communicate both his symptoms and the time course with which they had arisen. He spoke softly but the content was normal.
b) Low mood/depression – he struggled to define his mood, but it was notably low throughout the interview and he was intermittently very tearful.
c) Insomnia.
d) Hypomania.
e) Poor impulse control with increased spending.
f) Poor judgment.
g) Impulsivity – there were concerns by the family regarding Mr Major's impulsivity 2.
It was documented that Mr Major's developmental history seemed to indicate a long-standing history of emotional instability and, possibly more eccentric behaviour in his youth. Medication was prescribed including an antidepressant (Sertraline) and an antipsychotic (Quetiapine).
Mr Major is currently under the care of a consultant at King's College Hospital and has also been treated at South London and Maudsley NHS Foundation Trust.
Mr Lester submitted that the Respondent well knew of Mr Major's mental health issues when she commenced the claim against him and cannot have been taken by surprise in due course when it was found that he did not have the capacity to litigate. However ultimately it was unnecessary to consider this issue.
The proceedings concerned a claim for breach of contract in relation to (primarily) the payment of various loans. The value of the claim was £46,438 plus interest.
It was, and is, relevant to the issues to be determined in respect of her accepting the role as a litigation friend that Ms Cowell, who was a long term friend of Mr Major, believed that he has been exploited and had been the victim of controlling and coercive behaviour on the part of the Respondent.
Procedural history
The claim was issued on 23 July 2019. A defence was served on 9 th September 2019 referring to alleged harassment and denying the central allegations. On 28 April 2020, directions to trial were made, subsequently notice was given of a trial date of 14 October 2020.
Up until early September 2020 Mr Major was represented by solicitors. At a hearing on 9 th September 2020 before His Honour Judge Saggerson, Mr Major represented himself. The order made included a costs order against Mr Major. A trial date was set for 14 th and 15 th October 2020.
On 12 October 2020 Mr Major (supported by his parents and Ms Cowell) raised issues of capacity to conduct the proceedings.
On 13 th October 2020 the matter came before His Honour Judge Luba KC. He vacated the trial date and gave directions for investigation of the issue of capacity. On 20 th November 2020 the matter came back before His Honour Judge Luba KC. Mr Major was represented by Ms Walker of Counsel acting pro-bono (having been contacted through Advocate 3 the day before).
In January 2021 Dr Laura Bach prepared a medical report on the issue of capacity. She stated that during her assessment, Mr Major became distracted at times, overwhelmed and had to be reassured. It was necessary to explain, clarify and repeat what was being asked. Mr Major presented with difficulties expressing himself, and many of his answers lacked detail. Overall, he struggled to express and articulate what he wanted to say due to communication and memory problems. Dr Bach stated
“I asked Mr Major if he understands what is meant by a breach of contract and he responded that “it is to do with going on holiday and claiming money”. He was unable to provide any further details. He did not understand that the claim also referred to costs for rent and for other purchases, and he stated he is confused about what the Claimant is asking for. I asked him how much was being claimed and he responded that he thinks it is £26,000, which is a grossly inaccurate response.”
and
“Overall, Mr Major was vague in his responses, which lacked detail and understanding. He frequently stated that he did not understand the risks and had not real idea of what the risks were. His recall of what the proceedints ( sic) and claim were about were either frankly completely inaccurate, or hazy and confused. He appeared overwhelmed and stressed, and at times was unable to express fully his responses.”
And
“He appeared at this assessment to be suffering severe anxiety and depressive symptoms.”
On formal cognitive testing, Mr Major demonstrated severe impairments in attention, memory and abstract reasoning. He struggled to understand and recall information regarding the claim and appeared to be overwhelmed and stressed by his Bipolar condition, lack of sleep and litigation procedure. Dr Bach concluded that he did not have the capacity to litigate.
On 19 th February 2021 Mr Major's parents wrote to the Court. They asked for stay whilst the Official solicitor was approached to act as Mr Major's litigation friend. Mr Major (senior) also filed an application on 4 th March 2021 to adjourn a hearing listed on 8 th March 2021. His Honour Judge Luba KC refused the application.
Shortly before a further hearing on 8 th March 2021 Ms Cowell was approached by Mr...
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