Richardson-Ruhan v Ruhan



Judge: Mostyn J

Citation: [2021] EWFC 6

In Richardson-Ruhan v Ruhan [2021] EWFC 6 Mostyn J revisited a case which had been running for some five years ([2017] EWHC 2739) concerning whether the former husband of a divorcing wife remained “vastly rich” as she alleged, or had in fact lost all of his money to fraudsters. Mostyn J had then concluded that, rather than being worth nothing, the husband should be treated as having £12m for the purposes of a distributive award. In the 2021 judgment, Mostyn J considered the question of the wife’s capacity to conduct proceedings in circumstances where she had become mentally unwell, was seeking treatment and had parted ways with her previous legal representatives. This issue of the wife’s capacity arose in the context of a number of linked applications regarding the distribution of her former husband’s assets.

 

Mostyn J considered the application of the classic common law test of Chadwick LJ in Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889. He noted:

  1. In this case Mr Walker has confirmed that there is no possibility of completing the engagement of the wife’s new legal team in time for her to be represented next Thursday. Therefore, she would be acting in person and on the evidence of Dr Bell would be incapable of making rational decisions or dealing with complex legal issues.
  2. A literal interpretation of the test propounded by Chadwick LJ would suggest that in the absence of legal advice and representation she would be legally incapacitated and the court would be obliged to appoint a litigation friend. Such an interpretation is replete with problems.
  3. First, it creates circular reasoning. If the lack of representation generates incapacity, and that incapacity is addressed by the appointment of a litigation friend, and that litigation friend secures representation, then the incapacity disappears, and the appointment of the litigation friend comes to an end, leading, possibly, to the wife once again being unrepresented.
  4. Second, it means that in relation to the capacity to conduct litigation, that capacity does not have an absolute quantum, but rather varies depending on the presence, or otherwise, of legal advice and representation. If this were so the quantum would further vary, surely, in response to the quality of legal advice, which is very difficult factor to investigate.
  5. Therefore, Mr Sear and Mr Lord QC [counsel for the husband] argue that Chadwick LJ’s dictum should not be read literally. Rather, it should be read to mean that if the party is capable of understanding with the assistance of proper explanation from legal advisers the issues on which her consent or decision is likely to be necessary in the course of the proceedings, then she will have the requisite capacity, whether or not she actually receives such assistance.
  6. This reading is brutally pragmatic because it may have the effect, as here, of leaving someone who is actually incapacitated representing herself alone, in what may transpire to be a damaging and traumatic experience. However, that worrying scenario is, as Mr Lord QC rightly says, addressed by granting an adjournment in order for representation to be secured, rather than by the protracted and elaborate procedure of appointing a litigation friend.
  7. The interpretation espoused by Mr Sear and Mr Lord QC is consistent with the judgment of Baroness Hale DPSC in Dunhill v Burgin [2014] UKSC 18[2014] 1 WLR 933at [17]:

“Equally, of course, those words [of Chadwick LJ at [75]] could be read in the opposite sense, to refer to the advice which the case required rather than the advice which the case in fact received. In truth, such judicial statements, made in the context of a different issue from that with which we are concerned, are of little assistance. But they serve to reinforce the point that, on the defendant’s argument, the claimant’s capacity would depend on whether she had received good advice, bad advice or no advice at all. If she had received good advice or if she had received no advice at all but brought her claim as a litigant in person, then she would lack the capacity to make the decisions which her claim required of her. But if, as in this case, she received bad advice, she possessed the capacity to make the decisions required of her as a result of that bad advice. This cannot be right.”

  1. Thus, the capacity to conduct proceedings cannot depend on whether the party receives no legal advice, or good legal advice or bad legal advice. If the party would be capable of making the necessary decisions with the benefit of advice then she has capacity whether or not she actually has the benefit of that advice.
  2. This interpretation is also consistent with section 3(2) of the Act, which provides that

“A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means)” (my emphasis).

  1. The use of the conjunction “if” presenting the conditional clause that follows clearly means that the explanation in question does not actually need to happen in order for capacity to be found. If the draftsman had intended otherwise he would have used “where” or “provided that”. So, the provision may be held to be satisfied even where the person flatly refuses to receive an appropriately simple explanation of the information, provided that there was evidence that had she received it, she would have understood it.
  2. It is true that section 3(2) is only concerned with the ability to understand information relevant to a decision, when under section 3(1) there is more to making a decision than that. However, if the wife is deemed to be able to understand the relevant information if it were presented appropriately to her by advisers, and therefore by reference to that factor, has capacity, then it is hard to see how the other factors within section 3(1) could lead to a different conclusion.
  3. I therefore conclude that the wife is to be treated as having the capacity to make the necessary decisions to deal with the forthcoming hearing of the husband’s variation applications. The three-stage analysis referred to at paragraph 21 above ends at the first stage. I declare, accordingly, that the wife retains capacity to conduct this litigation and specifically to conduct the husband’s variation applications….”

Having reached these conclusions Mostyn J adjourned proceedings to enable the wife’s new legal team to prepare,

COMMENT

Neither of these judgments provides a wholly satisfactory answer on how capacity is to be determined in the absence of legal assistance. There is undoubtedly a symbiotic relationship between parties and their solicitors and the ability of the former to conduct proceedings: assessing mental capacity in a vacuum void of legal representation will undoubtedly continue to be problematic.

CategoryPractice and procedure - Other, Practice and procedure Date

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