2013 06 Incapacity

Monday 1 July 2013

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PS v LP[2013] EWHC 1106 (COP) (HHJ Cardinal): concerned whether it was in the best interests of LP to have contact with her husband and family. She had left home aged 59 with another man, alleging domestic abuse from her family, not wishing to be traced by them, and shortly afterwards had a stroke such that her current wishes could not be ascertained. Her family had traced her and wished to resume contact. When applying s 4 MCA 2005, LP’s clear expression of her wishes before the stroke was a “magnetic factor”. The accuracy of her perception that she had been mistreated by her husband and family was not a matter that had to be decided. It was not in LP’s best interests to see them, but they were to be informed every 6 months whether she had developed any ability to express her wishes and wished to see them. The dicta of Black LJ in K v LBX [2012] EWCA (Civ) 79 on Article 8 ECHR was relevant: giving priority to family life under Article 8 by way of a starting point risks deflecting attention from private life and the right to personal development and to establish relationships with other human beings in the outside world. The family adduced expert evidence in cutting –edge forensic linguistics based on a computer programme, on the authorship of a letter expressing LP’s wishes, which the judge treated with caution. Click here for the judgment.

Supplemental Practice Guidance on committal for contempt of court, 4 June 2013, Sir James Munby President of the Family Division and President of the Court of Protection: supplemental Practice Guidance to the Practice Guidance issued on 3 May 2013 here. Whilst applications for committal should at the outset be listed and heard in public, the Court of Protection and, in proceedings relating to a child, the Family Division each have discretionary powers to hear a committal application in private. This discretion should be exercised only in exceptional cases where it is necessary in the interests of justice. If the Court decides to sit in private, the Judge should, before continuing the hearing in private, give a public judgment setting out the reasons for doing so. A person who is not a party to the proceedings is not entitled as of right to a copy of the application notice. In every case where a committal application is made, the Court should, unless there are exceptional cases, direct that upon payment of the appropriate charge a copy of the application notice will be made available to any person who requests it. If in an exceptional case the court decides that a copy is not to be made available, the Judge must set out in writing the reasons for doing so. Where committals are heard in public, the judge and advocates should be robed. Click here for the supplemental Practice Guidance.

Pitt v Holt [2013] UKSC 26, (SC) (leading judgment given by Lord Walker): a trust had been set up to manage Mr Pitt’s damages for very serious head injuries. He subsequently died. The trust could have been established so that there would be no immediate inheritance tax liability but it had not been formed in that way. His personal representatives sought to have the terms of the trust set aside on the grounds of mistake. The judgment contains useful guidance on rescission on the ground of mistake. In this case, there would be injustice if the mistaken disposition was not corrected. Click here for the judgment.

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