Corbett v Patterson
[2014] NZCA 274
•26 June 2014 at 11:30 am
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IN THE COURT OF APPEAL OF NEW ZEALAND
CA303/2011 [2014] NZCA 274
BETWEEN JOHN HILLARY CORBETT
Appellant
AND
BRUCE REGINALD PATTERSON AND ROBERT CORBETT WESTERN Respondents
Hearing: 22 May 2014 Court:
Randerson, Winkelmann and Lang JJ
Counsel:
Appellant in Person
C J R Baird for RespondentsJudgment:
26 June 2014 at 11:30 am
JUDGMENT OF THE COURT
A The appeal is dismissed.
B The appellant must pay costs to the respondents for a standard appeal on a
Band A basis with usual disbursements.
REASONS OF THE COURT
(Given by Randerson J)
Introduction
[1] The appellant and his sister Lyndal Bolesworth are the two discretionary beneficiaries of the J M and J S Corbett Family Trust settled by their late parents in
July 1998. The respondents are the trustees of that trust.
CORBETT v PATTERSON AND WESTERN CA303/2011 [2014] NZCA 274 [26 June 2014]
[2] Since his parents died in 2005, the appellant Mr Corbett has been engaged in litigation over the Trust or issues associated with it.
[3] In this appeal, Mr Corbett challenges a judgment of Priestley J issued on
18 April 2011 in which the Judge:1
(a) Ruled that Mr Corbett was an incapacitated person within the meaning of r 4.29 of the High Court Rules; and
(b)Appointed Mr Simon Jefferson QC as Mr Corbett’s litigation guardian under r 4.35 of the High Court Rules.
[4] The issue in this appeal is whether those orders were correctly made.
Background
[5] The Judge recorded the essence of Mr Corbett’s concerns in these terms:2
The trigger of his stress is his perception that, around the time of his mother’s death in 2005, his parents, who at that stage were being cared for, were subjected to undue influence from other members of Mr Corbett’s family and by a solicitor. The result of that undue influence was that the plaintiff’s parents did not implement what he considers they really intended, and that was to alter both their wills and the memorandum of wishes relating to the trust, so that the estates and the trust would be distributed equally between the plaintiff and his sister, rather than two thirds to one third in the sister’s favour.
[6] There have been a number of proceedings issued by Mr Corbett. We briefly summarise these and the relevant procedural history:
(a) Priestley J recorded that the Auckland High Court Register suggested there had been six proceedings filed since 2005, including one appeal from the District Court and two judicial review applications against the legal complaints review officer.
(b)The first claim by Mr Corbett against his sister and the present respondents sought a variety of relief including an order for the
1 Corbett v Western [2011] 3 NZLR 41 (HC) [High Court judgment].
removal of his sister as a trustee of the Trust.3 Those proceedings were settled at a settlement conference on 24 January 2007 but Mr Corbett failed or refused to file a notice of discontinuance as he had agreed to do. Woodhouse J later found there was a binding agreement in a judgment delivered on 9 September 2009.4 This Court refused to grant an extension of time for Mr Corbett to appeal that judgment.5 The Supreme Court declined Mr Corbett leave to appeal on the basis that it had no jurisdiction to hear the appeal.6
(c) Mr Corbett has also brought proceedings against a lawyer, Mr Dell, relating to concerns over the family trust. We were told these proceedings remain extant.
(d)The current proceeding in the High Court was issued by Mr Corbett on 20 March 2010. On 25 May 2010 Hugh Williams J made an order under s 100 of the Judicature Act 1908 requiring Mr Corbett to submit himself to a medical examination by Dr P M J Brinded, a consultant
forensic psychiatrist.7 The judgment records that Mr Corbett did not
necessarily oppose the medical examination proposed but wished his own psychiatrist/psychologist or doctor to be present.8 The Judge agreed that a doctor selected by Mr Corbett could be present when the examination took place. There was no appeal from this judgment although Mr Corbett sought to recall it. His attempt to do so was unsuccessful since we understand the judgment had already been
sealed.
(e) After filing an appeal on 16 May 2011 against the orders made by Priestley J in the judgment under appeal, Mr Corbett sought leave to adduce further evidence in support of the appeal. This application
was dismissed by this Court on 15 December 2011.9
3 Corbett v Bolesworth HC Auckland CIV-2005-404-7172, 22 August 2006.
4 Corbett v Bolesworth HC Auckland CIV-2005-404-7172, 9 September 2009.
5 Corbett v Western [2010] NZCA 270.
6 Corbett v Western [2010] NZSC 95.
7 Corbett v Western CIV-2010-404-1495, 25 May 2010.
8 High Court judgment, above n 1, at [25].
9 Corbett v Patterson [2011] NZCA 649.
(f) More than two years later, on 27 February 2014, Mr Corbett sought to recall this Court’s judgment dismissing his application to adduce further evidence on appeal. That application was dismissed on
16 April 2014.10
(g) The respondent applied to strike out Mr Corbett’s appeal. On 6 March
2014 O’Regan P directed that the proper course was to set the appeal down for a substantive hearing.11 In his minute of that date, O’Regan P recorded that the appeal was concerned only with the correctness of the finding made by Priestley J that Mr Corbett was an incapacitated person and the consequent appointment of a litigation guardian for him.12
(h) Notwithstanding the rulings made by this Court with regard to further
evidence, Mr Corbett has, without leave, filed a further “affidavit” on
2 May 2014 which is best described as an amalgam of submissions (39 pages) accompanied by a number of documentary exhibits. Then, three days before the hearing of this appeal, Mr Corbett filed two further “affidavits” of a similar nature. The first of these ran to
29 pages with a large number of documentary exhibits. The second was only three pages in length but with some 76 pages of exhibits.
[7] At the commencement of the appeal, we indicated we would accept all the material filed by Mr Corbett on a provisional basis subject to a final ruling in this judgment. We took that course in the interests of disposing of this appeal, notwithstanding the concerns expressed by Mr Baird as counsel for the respondents and the obvious difficulty they faced in endeavouring to respond to material of this
kind filed very late in the piece.
10 Corbett v Patterson [2014] NZCA 145.
11 Corbett v Patterson CA303/2011, 6 March 2014.
The judgment under appeal
[8] Priestley J noted that Mr Corbett’s amended statement of claim ran to some
87 pages in length. The Judge’s view of this pleading was that:13
It is badly organised, incoherent, fails to satisfy the basic requirements of pleadings, and, unfortunately, in many respects, is incomprehensible.
[9] After citing some parts of the pleading to demonstrate his point, the Judge said:
[29] In very broad and general terms, a statement of claim is an initiating pleading designed to inform the defendants and the Court what relief the plaintiff is seeking and on what basis. Mr Patterson, for the defendants, has filed affidavits setting out the impossibility of trying to discern what the basis of the plaintiff’s claim is. Mr Baird, counsel for the defendants, was none the wiser. Nor am I and nor will be the Court of Appeal.
[10] Priestley J recorded that the respondents accepted that a traditional approach seeking a strike out would not succeed because it was possible that some cause of action “may be buried amongst the undisciplined welter of factual assertions”.14
Rather, the respondents’ application to have Mr Corbett declared to be an incapacitated person and to have a litigation guardian appointed was based on the hope that:15
… the litigation guardian will be able to sift through the plaintiff’s voluminous documentation, assess his grievances, and come to a detached and professional judgment as to whether the plaintiff has any tenable cause of action.
[11] The Judge recorded the respondents’ understandable concerns about the high costs of repeated litigation in relation to a trust with relatively modest assets of around $300,000. Those concerns are not new. They were raised as long ago as
2010 in this Court’s judgment dismissing Mr Corbett’s application for an extension
of time to appeal the judgment of Woodhouse J in relation to the settlement agreement.16
13 High Court judgment, above n 1, at [24].
14 At [30].
15 High Court judgment, above n 1, at [39].
16 Corbett v Western, above n 5, at [38].
[12] Priestley J had before him three affidavits sworn by Dr Brinded who is a well qualified, experienced and respected psychiatrist. The first dated 20 May 2010 was described as a “desktop review” of relevant documentary material.17 The second affidavit sworn on 7 September 2010 followed Dr Brinded’s examination of Mr Corbett on 27 July 2010 in the presence of Mr Corbett’s general practitioner, Dr Young. The third was an affidavit in reply to an affidavit of Dr Young.
[13] Priestley J carefully analysed Dr Brinded’s affidavits. Mr Corbett had related to Dr Brinded his mother’s psychiatric history and his own admission to Kingseat Hospital in the 1990s which Mr Corbett described as an “emotional, alcohol-related, psychological breakdown”. Dr Brinded’s opinion was that Mr Corbett presented with signs of abnormal mood which Dr Brinded believed was best characterised as a cyclothymic disorder, a recognised DSM-IV disorder. Dr Brinded described this as a less severe part of the bipolar disorder spectrum. The key presentations of such a
disorder were described as:18
… significant elevations of mood (hypermania) and significant episodes of depressed mood, all of which occur in a cyclical nature.
[14] The Judge recorded Dr Brinded as commenting that:19
The elevated mood states of these disorders alter a person’s thinking. Their thought processes become more rapid, they develop a plethora of ideas and plans, with thoughts occurring too rapidly for them to be actioned sensibly or logically. Persons in that mental state, when writing documentation and speaking, display the same confusion of thought with rambling, tangential, disorganised documentation that reflects their racing thoughts and confused and disorganised mental state.
[15] Dr Brinded’s observations of the plaintiff from the interview were consistent with these characteristics. Dr Brinded observed that Mr Corbett exhibited flight of ideas or flight of mind. His answers were loquacious, rambling, and tangential. Dr Young had to intervene frequently and remind Mr Corbett to answer the questions put to him. Dr Brinded considered it unlikely that Mr Corbett’s condition would change over time although there might be fluctuations of mood. Medication might
assist as a mood stabiliser, but there was no evidence at the interview that Mr Corbett would accept such a proposal.
[16] The Judge then recorded Dr Brinded’s relevant conclusions:20
(a) On the evidence he had seen (which must include his desktop
review) and taking into account the plaintiff’s presentation at the
22 July interview, his opinion was that it was reasonable to conclude the plaintiff was suffering from an unstable mental state in the form
of cyclothymic disorder which was significantly impacting on his
capacity to represent himself in litigation;
(b) The plaintiff was currently mentally impaired with respect to ongoing legal proceeding, in particular in his ability to understand the complex issues raised by his litigation and to make decisions about them, and more generally in relation to the affairs of the Corbett Family Trust. His impairment extended to his ability to represent his rights or protect his position in a legal forum and to manage his financial affairs in the event of any distribution to him of trust monies; and
(c) It was “likely to be of great advantage to [the plaintiff] and to the Court and to the [Trust] to have a litigation guardian appointed to assist him in addressing and resolving his grievances and concerns and the litigation.
[17] The Judge then continued:
[62] Without appointment of a litigation guardian Dr Brinded held “very substantial doubt” that the plaintiff would be able to:
(a) Present his case in a comprehensive and rational way;
(b) Understand and comply with the rules of Court and the applicable law;
(c) Consider the factual and legal issues before the Court in a reasoned manner;
(d) Deal rationally and in a reasonable way with the litigation; and
(e) Understand and make sound rational decisions on the issues arising from and in relation to the litigation.
[18] Priestley J noted that Dr Brinded’s opinion was effectively unchallenged. The only affidavit in opposition was sworn by Dr Young on Mr Corbett’s behalf. The Judge was strongly critical of Dr Young’s evidence. He described his affidavit
as being “clearly partisan”.21 Although it purported to attack some of Dr Brinded’s conclusions, the Judge considered Dr Young did not have the necessary basis of specialist professional expertise to do that.22 After discussing aspects of Dr Young’s evidence, the Judge said:23
… What Dr Young fails to do on an objective or professional basis is to focus on the plaintiff’s ability to conduct litigation in a rational and discerning way. Dr Young cannot do that because he appears to have swallowed, hook, line, and sinker, his patient’s assessment of his litigation grievances.
[19] Priestley J went on to review further material filed by Mr Corbett “literally on the eve of the hearing”.24 These documents were filed in breach of timetable orders but the Judge said he would consider them despite objection by counsel for the respondents. As the Judge observed, these additional materials came in an unsworn form and did not grapple with Dr Brinded’s opinion.
[20] One of the documents Mr Corbett produced was a letter from Dr R Pavagada, a consultant psychiatrist with the Counties Manukau District Health Board. Mr Corbett had been referred to Dr Pavagada by Dr Young, whose referral letter stated that Mr Corbett suffered from severe anxiety, aggravated by the litigation in which he was engaged. Two assessments of Mr Corbett were carried out in November 2010 and February 2011. Priestley J’s summary of Dr Pavagada’s opinion was expressed in these terms:
[77] Dr Pavagada’s opinion was that, based on his limited contact in November 2010 and February 2011, he did not observe any indication the plaintiff was currently suffering from an Axis I disorder. The examination did not suggest any generalised anxiety disorder, but Dr Pavagada comments that his conclusion was limited by the duration of his contact. His cognitive functions were within normal limits. Continuation of Diazepam medication was recommended.
[21] Dr Pavagada referred Mr Corbett to Dr Dath, a senior clinical psychologist. Dr Dath’s report dated 14 March 2011 was produced.
[22] Dr Dath’s conclusion was:
21 High Court judgment, above n 1, at [65].
22 At [65].
23 At [68].
Mr Corbett is a 57 year old Caucasian divorced male is living on his own and he is a WINZ beneficiary. He was referred to Te Rawhiti by his GP for a diagnostic opinion and treatment. Subsequently, he was assessed by consultant psychiatrist who further requested for the cognitive assessment to form a diagnostic opinion. Mr Corbett was seen on two separate occasions for the cognitive assessment. There was no clinically significant evidence for depression/anxiety or any evidence of any psychotic psychopathology (based on clinical observation). However, his general behaviour and thought process [is] suggestive of ideas of mistrust, over inclusive/circumstantial nature of thought process in my view this appears to be his personality nature. The outcome of the assessment and clinical observation suggests that there is no evidence of ongoing difficulties/dysfunctions in his general cognitive functions. Most of his core cognitive functions such as attention, comprehension, concentration, language, immediate memory/delayed memory and visuospatial functioning are within in normal range.
[23] Priestley J’s conclusion about these reports was:25
… in general terms, the late reports submitted by the plaintiff, which I have read and set out where relevant, point to a man who at most levels of everyday life is functioning normally. There is nothing, however, inconsistent with Dr Brinded’s more focused assessment. Indeed some aspects of Dr Dath’s assessment are consistent with Dr Brinded’s observations.
[24] After reference to relevant authorities including the decision of this Court in
Erwood v Maxted,26 the Judge concluded:
[89] At one level the plaintiff is clearly able to lead a self-sufficient life unimpaired by the disorder which Dr Brinded has diagnosed.
[90] At a second level, the plaintiff is well able, as I observed when he addressed me at length, to articulate his concerns clearly. For some of the minutiae of the litigation history, such as the dates and times of letters and emails, his memory was prodigious.
[91] But there is clearly a lack of focus, an inability to articulate or identify objectives, an inability to ascertain matters of relevance and weight, a total inability to understand such concepts as res judicata and the function of appellate courts, and an inability to present pleadings and documents in a concise and effective manner.
[92] The plaintiff’s cyclothymic disorder and the related phenomenon observed and reported by Dr Brinded coupled with the plaintiff’s determination to act for himself produce, so far as this proceeding is concerned, a seething incomprehensible mess.
[93] I unhesitatingly conclude that the plaintiff is an incapacitated person in the narrow and specific area of conducting this proceeding. His current
mental impairment, being rooted in a cyclothymic disorder, renders him incapable of understanding the issues on which decision and judgment are required as a litigant.
[94] My conclusion is that it is essential for a litigation guardian to be appointed. This is not a case where, in terms of r 4.30(1), I would contemplate for one moment “otherwise ordering”.
[25] The Judge took into account a number of factors in considering what he described as the overall justice of the situation. These were:
It would be wrong in principle to appoint a litigation guardian as a convenient remedy to deal with querulous or obsessive litigants.
Anatural person of sufficient age and capacity could not be denied the right to represent his or her case in person.27
The right under s 27(1) of the New Zealand Bill of Rights Act
1990 to the observance of natural justice.
[26] The Judge went on to observe that these rights were not absolute. The fact of mental impairment might override a person’s right to appear on his or her own behalf. The Judge considered Mr Corbett’s mental impairment was coupled with persistent and querulous litigation and that it was in the best interests of both parties that a litigation guardian be appointed. His conclusion was, he said, reinforced by three considerations. In summary these were:
One of the purposes of appointing a litigation guardian was to protect not only the incapacitated litigant but also the other parties. In this case, it was the Judge’s view the respondents needed protection.
The courts had a duty to ensure that litigation does not become distorted, delayed or abused.
The respondents were trustees who were not pursuing their own interests. They were instead discharging their obligations as trustees
to guard the equitable interests of the beneficiaries.
27 Citing the decision of this Court in Re G J Mannix Ltd [1984] 1 NZLR 309 (CA) at 312.
[27] The Judge expressed his final conclusion in these terms:
[101] I now stand back to assess my conclusion against the all-important constitutional background. Access to justice rides high. So too does the plaintiff’s right to represent himself. But, as is clear from the previous section of this judgment, those rights must be balanced against the rights of other parties and the core interest of courts to ensure that their processes are not paralysed or abused. Standing back, I believe that, in the unusual procedural circumstances of this case, the right balance has been struck.
Mr Corbett’s submissions
[28] Mr Corbett addressed the Court at the hearing of the appeal for over an hour. Despite O’Regan P’s direction and two reminders from us about the issues, almost all of his submissions related to the merits of his underlying case, all of which is beside the point for present purposes. Apart from failing to address us on the key issues identified at the outset of this judgment, Mr Corbett’s submissions on the merits of his proceedings were virtually impossible to follow. His submissions lacked any overall structure or coherence and contained random references to documents the relevance of which was not apparent. As well, he cast aspersions on officers of the Court that were inappropriate. As Priestley J predicted, at the end of Mr Corbett’s submissions we were none the wiser about his case.
[29] Mr Corbett said he was willing to rely on his written submissions in relation to the real issues in the case relating to his capacity and the appointment of a litigation guardian. In his written submissions (filed in the form of an affidavit on
2 May 2014), Mr Corbett raised a number of issues. As best they can be deciphered they relate to the merits of the litigation Mr Corbett seeks to advance; complaints about the administration of the affairs of the Trust, and alleged errors made by the Judges who have presided over other proceedings issued by Mr Corbett or at earlier stages of the current proceedings. We accept Mr Baird’s submission that none of these matters has any relevance to the current appeal.
[30] In relation to the judgment under appeal, Mr Corbett alleges unfairness on three grounds. First, he says that he asked for the proceedings before Priestley J to be audio recorded but they were not. This cannot afford Mr Corbett any viable ground of appeal. Second, he said he did not have the opportunity to cross-examine Dr Brinded. This point has earlier been raised by Mr Corbett and was disposed of in
this Court’s earlier judgment on 15 December 2011.28 In short, Mr Corbett did not give any notice to cross-examine Dr Brinded as required by the High Court Rules. When he raised the issue during the hearing before Priestley J, Mr Baird informed the Court that Dr Brinded was in Christchurch and was not available for cross-examination given the absence of notice. Mr Corbett did not seek an adjournment to enable him to cross-examine Dr Brinded. The third matter raised by Mr Corbett under this heading was that the Judge was peremptory in directing him not to interrupt the Court during Mr Baird’s submissions. We are not persuaded that there is any unfairness to Mr Corbett in this respect or that there was any other unfairness to him during the hearing.
[31] Mr Corbett further submitted there were some factual errors in Priestley J’s
judgment but we are not persuaded there were any material errors.
[32] As to his capacity to conduct the proceedings, Mr Corbett pointed to Dr Young’s affidavit and the other reports from Dr Pavagada and Dr Dath. He submitted that these reports showed that he had the capacity to conduct the proceedings and that was his preferred outcome. He rejected Priestley J’s finding that his 87 page amended statement of claim was unintelligible but offered to amend it if necessary. Mr Corbett suggested Dr Brinded had a conflict of interest because he was a member of the Parole Board and because he was known to the respondents’ solicitors, as well as the judiciary.
[33] As to the appointment of Mr Jefferson QC as litigation guardian, Mr Corbett expressed concern that legal costs would deplete the resources of the Trust. He also submitted that the Judge ought to have accepted his suggestion that if a guardian was to be appointed, then Mr Michael Black, Barrister should be appointed. He suggested that there was some form of improper connection between Mr Jefferson and the respondents’ solicitors.
[34] We deal with Mr Corbett’s submissions on the issues of capacity and the
appointment of the litigation guardian in our discussion below.
28 Corbett v Patterson, above n 9.
Discussion
[35] Rule 4.30(1) of the High Court Rules provides that an incapacitated person must have a litigation guardian as his or her representative in any proceeding, unless the court orders otherwise. An “incapacitated person” is defined by r 4.29:
incapacitated person means a person who by reason of physical, intellectual, or mental impairment, whether temporary or permanent, is—
(a) not capable of understanding the issues on which his or her decision would be required as a litigant conducting proceedings; or
(b) unable to give sufficient instructions to issue, defend, or compromise proceedings ...
[36] In Erwood v Maxted this Court considered the issue of incapacity in the context of the former r 82 of the former High Court Rules.29 This rule was expressed in identical terms to the present definition of incapacitated person. The Court said that the starting point was the presumption that the person in question is competent.30
The next step is to determine whether the subject person is able to understand the nature of the litigation engaged in, its possible outcomes and the risks associated with it.
[37] These observations addressed subpara (a) of the definition but did not canvass subpara (b) which relates to the ability to give sufficient instructions to issue, defend or compromise proceedings. That subparagraph is engaged where the subject person is represented by a lawyer but capacity issues nevertheless arise on the part of the litigant.
[38] We agree with the observations in Erwood v Maxted. The presumption of capacity as a starting point is consistent with the general law. We also agree with Priestley J that the importance of the citizen’s right of access to justice is such that the court should act cautiously before denying a litigant’s rights to appear and
conduct litigation in his or her own right or with the assistance of counsel.
29 Erwood v Maxted, above n 26.
30 At [26].
[39] The appointment of a litigation guardian is not something which should be lightly entertained since the incapacitated person must surrender to the litigation guardian the control of the proceeding including the right to discontinue or settle the claim. Nor should such an order be made for the convenience of the court or the other parties to the litigation who may be confronted with the difficulties sometimes associated with an unrepresented opponent. It needs to be kept in mind that the court has power to stay or dismiss a proceeding for abuse of process and, ultimately, may declare litigants to be vexatious. Another potential alternative is the appointment of counsel to assist the court.
[40] On the other hand, where a litigant is not capable of understanding the issues associated with the litigation or is unable to give sufficient instructions to issue, defend or compromise proceedings, the protection of the processes of the court and the protection of an opposing party become relevant. The best interests of the subject party may also require consideration as Priestley J recognised. If the proceeding has any intrinsic merit, the appointment of a litigation guardian will assist the incapacitated person by identifying and presenting his or her case in a cogent and effective manner not otherwise available to an incapacitated party.
[41] The matters we have discussed in the preceding two paragraphs are to be balanced in the overall assessment. We are satisfied Priestley J correctly applied these principles. He also drew support from the decision of Debelle J in the South Australian case Dalle-Molle (by his Next Friend Public Trustee) v Manos.31
Although the definition of “person under disability” discussed in the Dalle-Molle
case differs from the definition of incapacitated person under r 4.29 of the High Court Rules, some of the observations made by Debelle J are useful nevertheless.32
[42] We have also had the opportunity to consider the position in relation to capacity in the United Kingdom, with reference to the Mental Capacity Act 2005
31 Dalle-Molle (by his Next Friend Public Trustee) v Manos [2004] SASC 102.
32 Relevantly, the South Australian rules provide that a person under disability means an infant and any person “who by reason of physical weakness or intellectual or mental impairment or other condition whether temporary or permanent, is unable to give sufficient instructions to take, defend, or compromise proceedings.” (Rule 5 of the Supreme Court Rules 1987 (SA).)
(UK) and the recent judgment of the Supreme Court in that jurisdiction, Dunhill v Burgin.33 We note the Supreme Court’s comments that the definition of a protected party that “lacks capacity” under that Act was closely modelled on the common law prior to the Act.34 As such, the principles outlined in the Act are helpful in interpreting r 4.29 of the High Court Rules:
[43] We have drawn on the comments of Debelle J as well as the Mental Capacity Act (UK) and case law in that jurisdiction to suggest a number of relevant considerations. They include:
(a) The burden of proof is on the party asserting incapacity, on the balance of probabilities standard.35
(b)The inquiry should focus on the subject party’s role in the specific litigation at issue. The complexity of the litigation will be relevant to the assessment.
(c) The inquiry is not concerned with the sanity of the subject party. Nor is it concerned with the capacity of the subject party to make other legally effective decisions such as the making of a contract or will. The general approach is that capacity is to be judged in relation to the
decision or activity in question and not globally.36 Evidence of the
capacity to make decisions which have legal consequences and to conduct ordinary day to day affairs will be relevant but must be weighed with such other evidence as is adduced.
(d)Something more is required than the mental competence to understand in broad terms what is involved in the decision to prosecute, defend or compromise the proceedings. The person must be able to understand the nature of the litigation, its purpose, its possible outcomes, and its
risks, including the prospect of an adverse costs award.
33 While we note that the Mental Capacity Act 2005 relates to all aspects of legal capacity and not merely the ability to conduct legal proceedings, the principles outlined in sections 2 and 3 of the Act helpfully distil the common law position on capacity; Dunhill v Burgin [2014] UKSC 18, [2014] 1 WLR 933.
34 Dunhill v Burgin, above n 33, at [14].
35 Masterman-Lister v Brutton [2002] EWCA Civ 1889, [2003] 1 WLR 1511 at [17].
36 Dunhill v Burgin, above n 33, at [13] citing Masterman-Lister, above n 35, at [83].
(e) The fact that the subject party is vulnerable to exploitation or prone to rash or irresponsible decisions may be relevant but it does not necessarily follow that the party is unable to understand the issues or to give sufficient instructions.
(f) When assessing the capacity to give instructions to counsel, the test is whether the subject party is capable of understanding the issues on which his or her consent or decision is likely to be necessary, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require.37
Conclusions
[44] We are not persuaded Priestley J was wrong in finding that Mr Corbett was an incapacitated person or in appointing Mr Jefferson QC as litigation guardian.
[45] As to the first issue, we agree with Mr Baird that the Judge was entitled to give weight to and accept the expert opinion of Dr Brinded. He was the only medical expert who examined Mr Corbett for the purpose of addressing the specific issues the Judge was required to determine. Dr Brinded’s evidence in that respect was effectively unchallenged. There is no basis to suggest that Dr Brinded was anything other than independent and an appropriately qualified expert.
[46] The Judge was entitled to reject Dr Young’s views for the reasons he gave. The opinions expressed by Dr Pavagada and Dr Dath were not directed to Mr Corbett’s capacity to conduct the litigation. Unlike Dr Brinded, they did not have the opportunity to review the court documents filed by Mr Corbett in this and other proceedings. As Priestley J said, their reports (not the subject of any sworn affidavit) showed that Mr Corbett was able to function normally at most levels of everyday life. But of course that does not address the issue of his capacity to
conduct complex litigation on his own behalf.
37 See Chadwick LJ’s observations in Masterman-Lister, above n 35, at [75].
[47] Importantly, Dr Brinded’s views on the issue of capacity are graphically demonstrated by Mr Corbett’s amended statement of claim, the submissions and affidavits he has filed in this respect and his oral submissions before us.
[48] The amended statement of claim is of inordinate length, is unfocused and fails to follow the basics of pleadings. It is largely unintelligible in terms of the essential purpose of a pleading which is to inform the Court and the opposite party in a succinct fashion of the essential facts and causes of action relied upon. We have no confidence that a further amended statement of claim presented by Mr Corbett would properly identify and articulate his causes of action in a way that complies with the High Court Rules.
[49] The submissions Mr Corbett has presented to this Court suffer from the same defect. While Mr Corbett appears to have good recall of detail, he lacks the ability to distinguish between relevant and irrelevant matters. He has an obsessive concentration on small detail but no ability to stand back and view the detail in context. Importantly, he does not have the capacity to marshal relevant facts into a coherent argument. In consequence, his pleadings and submissions are of extreme length, rambling, repetitive, unfocused and, in many parts, unintelligible.
[50] We are satisfied that Mr Corbett does not understand the issues on which his decision would be required as a litigant conducting proceedings on his own behalf. It is in his interests as well as those of the respondents, the Trust and the Court to have a litigation guardian appointed to conduct the litigation on Mr Corbett’s behalf. There is nothing to suggest that Mr Jefferson is an inappropriate person to be appointed to that role. Nor is there any evidence to suggest that he is not independent or that he is not otherwise an appropriate appointee. The person appointed as a litigation guardian is a matter for the High Court and Priestley J was not obliged to adopt Mr Corbett’s suggestion that Mr Black be appointed.
[51] We do not consider it appropriate to take into account the further “affidavits” Mr Corbett filed without leave shortly before the hearing of this appeal. Suffice to say that we have reviewed those documents and are not persuaded there is anything contained in them that would cause us to reach a different conclusion.
Result
[52] The appeal is dismissed.
[53] The appellant must pay costs to the respondents for a standard appeal on a
Band A basis with usual disbursements.
Solicitors:
Quinn Law, Auckland for Respondents
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