HHJ Muzaffer. The only question the court was concerned with was what should happen to the jointly-owned FMH. However, this case illustrates the difficulties arising when one party lacks capacity to litigate and is dependent on the Official Solicitor, but where security for that party’s costs may not be readily available.

Background

W and H, both 65, were married for 35 years. W has Bipolar Affective Disorder and presented as extremely unwell throughout proceedings. The parties have two adult and independent children. After separation, the parties remained living together in the FMH in separate, and distinct areas of the house. However, the FMH did not satisfy either party’s basic need for accommodation – H occupying the ground floor with no use of a bathroom or toilet, W occupying the first floor with no access to a kitchen. The FMH was dilapidated and required refurbishment throughout.

There was one issue: what should happen to the jointly owned FMH?

H sought a sale with an equal division of proceeds. W sought for either the FMH to be transferred to her sole name once the mortgage was cleared and H live in rental, or a transfer with a charge back or Mesher order. A clean break was agreed.

Issues

A complicating factor was W’s health. Medical professionals opined W suffered a relapse of her Bipolar Affective Disorder during proceedings, which included suicidal ideation and paranoia, with the identified trigger being a decision being made about the FMH. W’s capacity to conduct litigation was at issue. This caused a number of consequential issues including significant delay.

A capacity assessment was required but due to difficulties in finding a practitioner to assist, the court determined the question, concluding W did not have capacity to litigate. With it not being possible to identify a litigation friend, the Official Solicitor was invited to act as a litigation friend of last resort.

There were issues with the Official Solicitor’s security for costs. No progress could be made until the issue was resolved. 15 months after the capacity decision, the Official Solicitor confirmed her agreement as W had secured legal aid. However, W’s legal aid entitlement was reassessed and subsequently discharged, and the Official Solicitor withdrew consent to act.

Further exploration of litigation friends was fruitless, and so despite the provisions in FPR 15, the overriding objective required the court to actively look at how to conclude the proceedings. The matter was listed straight to final hearing, rather than FDR. HHJ Muzzafar regarded this as being a case where exceptional reasons applied per FPR 9.15(4)(b).

HHJ Muzzafar wrote to the Chief Executive of the Legal Aid Agency detailing their concerns and in the ‘very unique circumstances of the case’ W’s legal aid certificate was reinstated.

Decision

The final hearing was dealt with on submissions only, with a written judgment being prepared to provide W with additional space and time to be supported to process the decision.

The court ordered a sale of the FMH, with 57% of the net sale proceeds or the first £150,000 to W, whichever is greater.

Whilst acutely aware of W’s care and health needs, and the probability of a deterioration in W’s mental health in the event of a sale, HHJ Muzaffer noted that s 25 MCA requires the court to have regard to a range of matters, and it would not produce a fair outcome if W’s health needs were elevated to being the court’s paramount consideration. The division of sale proceeds would ensure that both parties could rehouse and meet their housing needs with owned accommodation.