Phillips v Symes [ChD]
| Jurisdiction | England & Wales |
| Judge | Mr Justice Peter Smith |
| Judgment Date | 30 July 2004 |
| Neutral Citation | [2001] EWHC 395 (Ch),[2004] EWHC 1887 (Ch) |
| Docket Number | Case No: HC100810 |
| Court | Chancery Division |
| Date | 30 July 2004 |
[2004] EWHC 1887 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Honourable Mr Justice Peter Smith
Case No: HC100810
Mr A Steinfeld QC, Mr J Stephens and Miss J Chappell (instructed by Messrs Lane & Partners) for the Claimants
Mr J Behrens (instructed by Messrs Berwin Leighton Paisner) for The Official Solicitor as Advocate for the Court
Hearing dates: 12 th, 13 th, 14 th, 15 th, 16 th 19 th and 21 st July 2004
Approved Judgment
Mr Justice Peter Smith:
INTRODUCTION
On 25 th March 2004, I ordered the trial of a number of issues relating in broad terms to the mental fitness of Robin James Symes ("Mr Symes") to instruct his solicitors and properly give evidence. The issue (the "Issue") involves four questions; namely whether Mr Symes:-
a) Is or had been during any period after 27th February 2001 (and if so during what period) a patient within the meaning of CPR 21;
b) Is or has been during any such period incapable by reason of any mental disorder from fairly participating generally in these proceedings;
c) Is or has been during any such period unable to give evidence either orally or in writing and/or be cross-examined;
d) Was incapable by reason of any mental disorder from fairly participating in the hearing commencing 30 April 2003 and/or was mot responsible (by reason of such mental disorder) for the swearing of the affidavits and the making of witness statements which led to that hearing.
Mr Symes did not participate in the hearing as to his mental capacity, nor did he instruct solicitors. In view of the importance of the decision from his point of view, the Official Solicitor has appeared by Counsel (Mr Behrens) to assist the court by putting the case, insofar as it is proper for the Official Solicitor so to do, that Mr Symes would have put had he participated in the proceedings.
The proceedings were held in private because of the personal nature of the evidence, which was going to be given in respect of Mr Symes' capacity.
PRINCIPLES
The nature of the inquiry and how that inquiry is to be conducted can be discerned from the recent Court of Appeal decision of Masterman-Lister –v- Brutton & Co. [2003] 1 WLR 1511.
The following points arise:-
1) A person of full age is presumed to have the mental capacity to manage his property and affairs until the contrary is proved, and the burden of proving the contrary rests on whoever asserted the incapacity (i.e. in this case Mr Symes).
2) The court as a matter of practice should investigate the question of capacity whenever there was any reason to suspect its absence, even if the issue did not appear to be contentious.
3) Where an issue of capacity arose, after a decisive step had already been taken, the court could regularise the position retrospectively under the rules provided everyone had acted in good faith and no injustice could be caused.
4) The test of mental capacity was issue specific and depended on the nature and complexity of the transaction in respect of the decision as to the capacity failed to be made.
5) For the purpose of CPR Part 21 the test to be applied was whether the party to the legal proceedings were capable of understanding, with the assistance with such proper explanation from legal advisers and experts in other disciplines as the case might require, the issues on which his consent or decision was likely to be necessary in the course of those proceedings, but although decisions actually made were likely to be important indicators of the existence or lack of understanding, a person was not to be regarded as unable to make any rational decision merely because the decision made would not have been made by a person of ordinary prudence, or conversely having mental capacity merely because his decision appeared rational.
The case provides some guidance as to evidence. Thus Kennedy LJ (paragraph 39) reviewed the non-medical evidence at trial. He referred to evidence of the Claimant's parents and two of his friends and accepted the submission that lay evidence "was important evidence which the judge failed sufficiently to analyse".
In paragraph 40 he referred to a mass of documentary evidence, including in particular the Claimant's diaries and that was relied upon by the Claimant's counsel in that case to demonstrate the lack of capacity. It is equally true, having regard to Kennedy LJ's uncritical acceptance of that evidence that such evidence could be used (not exclusively) to assist in determining whether a person had capacity.
Chadwick LJ (paragraph 84) observed:-
"For my part, I find it of particular significance that, in this case, two experienced solicitors did not recognise the need for the appointment of a next friend; and that no criticism is made of either in that respect."
Such factual matters cannot of course be determinative because non-expert observers might not be sufficiently alert to indications that ought to have led to a conclusion affecting a person's capacity. Conversely, the evidence of experts is of value, but not of such value as to be determinative. In short, one looks at the evidence of lay people, the evidence of the way in which the person conducts himself, any documentary evidence which is available which might throw light on his or her ability and the evidence of experts who have observed the person in question and applied appropriate tests in order to come up with an opinion as to that person's capacity.
In this case I have had evidence covering all such areas.
HOW DID THE ISSUES ARISE?
In order to understand the terms of the Issue and evaluate the evidence, it seems to me that it is necessary to have regard to the overall context in which it arose and to some of the important points of the background history.
From the 1970's or thereabouts, Mr Symes and Christo Michailidis ("Christo") shared a home in London and built up a very successful business trading in antiquities. Mr Symes in particular became one of the foremost experts in the world in dealing with Egyptian antiquities.
Christo died in an accident in Italy on 5 th July 1999, domiciled in Greece. On 8 th February 2001, Letters of Administration were granted out of the Oxford District Probate Registry to the First and Second Claimants (First and Second Respondents to the Issue) ("the Administrators").
The affairs of Mr Symes and Christo were complicated having a world wide flavour. During 2000, discussions took place with Mr Symes and his Swiss lawyer, a Mr Tavernier, and with Dimitri Papadimitriou (Christo's nephew) and the family's Athens lawyer, Mr Anthony Papadimitriou (no relation) with a view to sorting out the complex affairs of the business, which had operated in the United Kingdom through a company called Robin Symes Limited ("RSL") as well as from Switzerland through various offshore corporate vehicles. Those discussions foundered. Ultimately, on 12 th February 2001 the Administrators wrote a very full letter to Mr Symes setting out the family's views with regard to the business relationship between Mr Symes and Christo. The Administrators' contention was that their business had been a partnership and that RSL was a partnership asset. The contention was that the partnership being a partnership at will was dissolved consequent upon the death of Christo, with the result that its affairs ought to be wound up, consequent upon that dissolution with the usual partnership account and enquiries, with a view to realising the assets, paying its debts and returning the in effect equal shares to Mr Symes and Christo's estate.
Mr Symes by then had left the United Kingdom and was living in Switzerland.
He commenced proceedings on 23 rd February 2001, in the Athens' courts, which were served on Christo's sister (Mrs Despina Papadimitriou) and his mother, both of whom were and remain resident in Athens. They were also served on the Administrators in London. By those proceedings Mr Symes sought negative declarations in respect of the existence of a partnership and in respect of several collections of antiquities and in particular a collection of art deco furniture by Eileen Gray which had been in the Chelsea house occupied by Mr Symes and Christo, and which was said to be worth in excess of US$15 million.
The Administrators contended that the purpose of Mr Symes' proceedings in Athens were to block any attempt to recover Christo's share of the partnership and to delay (because then proceedings in the courts in Athens were taking decades rather than years) any prospect of successful recovery.
I make no observation about that as it is not relevant to the Issue. However, the Administrators received advice that they could commence their own proceedings in these courts and they accordingly did so on 27 th February 2001, when they applied without notice to Lloyd J, who made an order...
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