Fox v Wiggins & Ors

Judge: High Court (QBD (Julian Knowles J))

Citation: [2019] EWHC 2713 (QB)


In this case, Julian Knowles J had to consider what to do in civil proceedings when a party’s capacity to conduct the proceedings is put in issue by the person themselves.   The person in question was the Sixth Defendant in a libel action brought against her and a number of other former partners of a musician. She and her ‘co-conspirators’ were accused of making serious defamatory allegations about the Claimant and his violent conduct online.   While all of the other Defendants filed defences to the Claimant’s claim, the Sixth Defendant, despite engaging in the litigation to the extent of requesting extensions of time, failed to do so. As a result, judgment in default was entered against her.

The Sixth Defendant, in an application supported by her mother, sought a declaration that she lacked capacity within the meaning of CPR r 21.2(2)(c) as a result of Crohn’s disease, depression, anxiety and post-traumatic stress disorder. She also sought an order setting aside the default judgment and granting relief from sanctions. Considering both the application of CPR Part 21 and s.3(1) MCA 2005 and the guidance set down by Baker J (as he then was) in A Local Authority v P [2018] EWCOP 10, and HHJ Hilder in London Borough of Hackney v SJF and JJF [2019] EWCOP 8, Julian Knowles J analysed whether the Sixth Defendant had adduced sufficient evidence to overcome the presumption of capacity as set out in s.1(2) MCA 2005.

Disregarding submissions that evidence from the Sixth Defendant’s treating psychiatrist should be rejected on the grounds that it failed to meet the requirements of CPR Part 35, Julian Knowles J nonetheless did not consider the Sixth Defendant’s psychiatric evidence sufficient to set aside the presumption of capacity. Nor was he convinced by evidence from the Sixth Defendant’s mother as to her daughter’s lack of capacity on which he held at paragraph 81:

  • Her evidence does not establish that her daughter is never able to give instructions. It merely suggests that there are times when her daughter becomes very emotional and finds it hard to communicate with her. Again, there is no discussion of what other steps have been, or could be, taken in order to assist her daughter. To find that an adult lacks capacity is a significant step with far reaching consequences. For example, it deprives her of civil rights, in particular her right to sue or defend in her own name, and her right to compromise litigation without the approval of the court. These are important rights, long cherished by English law and safeguarded by the European Convention on Human Rights: Masterman-Lister, supra, [17]; In re Cumming (1852) 1 De GM & G 537, 557. Such a decision should therefore only be taken on the basis of cogent evidence. I find that cogency is lacking here. The evidence is sparse. (emphasis added)

Furthermore, Julian Knowles J considered evidence such as the Sixth Defendant’s social media presence on the extent to which she was unable to engage with life as alleged. He held at paragraph 84 that:

  • Having regard to the evidence that is before me, I am not satisfied that the Sixth Defendant has discharged the burden on her to show on the balance of probabilities that she currently lacks capacity, or did so between 4 May 2018 and now. I accept that she has a number of physical and mental ailments. I accept that being confronted with this litigation is stressful for her. However, at a minimum, I would have expected that Dr Inspector would have had a full consultation with the Sixth Defendant and considered the litigation with her, and then reported properly, fully and completely on his findings as to her ability to conduct litigation with reference to the tests for capacity under the MCA 2005 and the principles to which I have referred. He did not do that, but merely provided a brief opinion based upon what appears to have been a short discussion with his patient. Given the time which has passed since May 2018 (at the latest) when this issue first emerged I would also have expected expert evidence about the Sixth Defendant’s mental state. There is none. I agree with the Claimant’s submission that I am prevented from carrying out any detailed analysis of the evidence with regard to the tests under the MCA 2005, because there is no evidence to analyse other than Dr Inspector’s bare assertions and [the Sixth Defendant’s mother’s] generalised evidence.

His finding of capacity and that she had no realistic prospect of successfully defending the claim notwithstanding, Julian Knowles J did grant the application to set aside judgment, noting that the Sixth Defendant did indeed suffer from serious medical issues and was without legal representation at the time at which judgment in default was entered.


It is very unusual for a person, themselves, to assert that they lack capacity to conduct proceedings, as this is more often put in issue either by another party or the court (sometimes at the instigation of their legal representative). Ms Dunhill did so, retrospectively, and the Supreme Court held that her (at the time unrecognised) lack of litigation capacity rendered subsequent steps in the proceedings void.  It was to Ms Dunhill’s benefit in that case for the settlement she had entered into to be set aside; similarly, it would have been to the Sixth Defendant’s benefit, even if only temporarily, to have a finding made of incapacity so as to render steps taken against her – including the grant of default judgment – set aside.

It is quite understandable, therefore, that Julian Knowles J proceeded on the basis that the Sixth Defendant had, in essence, to prove her own incapacity, and that the Claimant’s representatives sought to challenge that assertion on an adversarial basis.  It is perhaps important to emphasise, however, that any court considering litigation capacity is, in fact, conducting an inquisitorial exercise, because it is for the court to be satisfied whether or not a party before it has capacity to conduct the proceedings.  As Rimer J put it in Carmarthenshire CC v Lewis [2010] EWCA Civ 1567: “once the court is possessed of information raising a question as to the capacity of a litigant to conduct the litigation, it should satisfy itself as to whether the litigant does in fact have sufficient capacity.”  For further discussion of the issues, see also Z v Kent County Council (Revocation of placement order – Failure to assess Mother’s capacity and Grandparents) [2018] EWFC B65.


CategoryOther proceedings - Civil Date


Sign up to our Mental Capacity Law Newsletter

If you would like to subscribe to our newsletters please click the link below.


Call +44 (0)20 7832 1111 for more information

Barrister portfolio


Click the + icon next to any barrister to add their profile to this portfolio.

Barrister Call CV Email