2013 04 Incapacity

Wednesday 1 May 2013

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Baker Tilly v Makar [2013] EWHC 759 (QB) Sir Raymond Jack: a costs Judge, Master Leonard, was conducting a detailed assessment of Baker Tilly’s (the claimant) bill of costs to be paid by the defendant, a litigant in person. On the second day of the hearing the defendant became tearful and the Court took a break so she could compose herself. In the corridor outside the hearing room, she became very distressed, rolling on the floor and screaming. She calmed down and was ushered by a security guard into a room where she was heard speaking calmly and asking the guard’s name. The Master, who had heard but not seen the incident in the corridor, was concerned about her capacity to conduct the assessment. He sought to involve the Official Solicitor. The Defendant would not co-operate by allowing access to her medical records. He later made an unless order requiring her to do so. At a subsequent hearing, he gave a judgment in which he concluded that the defendant did not have capacity to manage the detailed assessment and that it should be stayed pending the appointment of a litigation friend. He set aside the unless order, having concluded that it should not have been made. He pointed out that the claimant could apply for the appointment of a litigation friend and that it might be necessary for the claimant to indemnify the litigation friend against liability for costs and to meet any charges. The claimant appealed. Sir Raymond Jack considered the circumstances in which the Court could find that a party lacked capacity in the absence of any medical evidence. He reminded himself of authority that a court cannot ordinarily, by its own impression of its litigant, safely form its own view in the absence of medical evidence. But there was no authority in cases where the litigant has refused to co-operate in an assessment of his or her capacity. Sir Raymond Jack considered the information available to the costs Judge, found that some of the conduct relied upon to support the finding that she lacked capacity was conduct typical of a vexatious litigant and noted she had had the capacity to represent herself in other proceedings. Sir Raymond Jack found that the costs Judge had been right to find that there was initially sufficient reason to doubt her capacity but that the final decision that she lacked capacity was wrong and the assessment should not have been stayed pending the appointment of a litigation friend. A transcript of the judgment is not yet available.

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