The Interplay of Capacity & Vulnerability in Financial Provision : Wickham v Riley & Ors [2020] EWHC 3711 (Fam)

“A person is not to be treated as unable to make a decision merely because he makes an unwise decision”: The Interplay of Capacity & Vulnerability in Financial Provision

Does the presence of an unwise decision by someone suffering from an impairment, vulnerability and susceptibility to influence render them lacking in capacity? Can it otherwise be of significance in the reissuing of a claim after discontinuance?

Not so as to capacity but yes as to permission to reissue a discontinued claim on the facts says Williams J. in Wickham v Riley & Ors [2020] EWHC 3711 (Fam)

The Facts :

The Parties were embroiled in protracted litigation over a will.

C1, the son of the Deceased and D5 (his mother), who held a diagnosis of autism spectrum disorder sought financial provision from the Estate administered by D1 and D2 opposed by the beneficiaries, D3 and 4.

Whilst of school age and supported by a litigation friend, C1 provisionally settled proceedings with D1 – 4 before Cohen J. in November 2018. D5 however wished to consider her tax position so the matter was stayed for this to happen.

Thereafter, in January 2019, C1 emailed the solicitor for D1 & 2 informing them he wished to withdraw his claim.

In February 2019 C1’s litigation friend’s solicitor applied to the Court to determine whether C1 remained a protected party and their appointment had not ceased.

In March 2019 C1 served a notice of discontinuance and later that day a further notice signed by C2, though neither bore the signed consent of the other.

A report as to C1’s capacity was obtained from Dr Chrisholm who concluded he had capacity to conduct proceedings. C1’s litigation friend was discharged and C1 proceed in person.

However, by March 2020 C1 had indicated he wished to pursue proceedings again. As such the Court then sought to resolve questions as to C1’s capacity to serve notice of discontinuance, its effectiveness, ability to withdraw a notice and permission to reissue.

Whilst D1 and 2 adopted a broadly neutral position, D3 and 4’s joint position asserted –

  • the presumption of capacity under the Mental Capacity Act 2005 had not been displaced by the evidence available to the Court;
  • there was valid discontinuance and any minor error was excusable under CPR r.3.10;
  • C1’s failure to file notice per CPR r.21.9 should lead to the new claim being struck out;
  • C1 had produced insufficient evidence to extend time under the six-month limitation period in s.4 1975 Act in respect of the new claim.

The Expert’s Reports:


Dr Chisholm’s initial capacity report had concluded – 

  1. C1 was able to understand information relating to the case, though some points needed further explanation;
  2. he was able to retain information relevant to the case;
  3. he understood the consequences of making a decision either way; and
  4. he did not have difficulties in communicating his decisions.

C1 understood a compromise had been reached in November 2018 but he had concerns as to  the ‘tax implications’ for D5, that she would bear the costs and he would inherit D5’s estate regardless. He said D5 had explained this and told him “What’s the point when I would be having a bill. It doesn’t make logical sense”. C1 went on to explain D5 had dictated his email withdrawing the claim.

When asked why he had changed his mind C1 said he believed that the freezing of D5’s money meant she would not bear the costs.

Dr Chisholm reported that C1 was easily influenced by others. It was clear his decisions were significantly informed by D5’s opinion but he nevertheless understood the consequences of his actions and therefore had capacity.

Dr Chisholm found nothing in C1’s school records or identified from discussions with him indicating a fluctuation in his capacity.

The Decision :

Williams J found C1 had capacity at the time of his withdrawal of proceedings.  Though the decision was unwise and C was somewhat prone to influence, this did not mean he lacked capacity. The presumption in the 2005 Act and Dr Chisholm’s findings had not been rebutted.

Although his notice of discontinuance did not contain the consent of C2 this did not render the notice ineffective per r.3.10. 

Though the Court was mindful C1’s request for permission to reissue was not made promptly further to the public interest in finality of litigation and the prejudice to D1 – 4 in terms of delay and costs; the Estate was yet to be distributed and without leave C1 would be left without remedy in a matter which self-evidently had realistic prospects.

C had provided a clear explanation for his withdrawal and realisation that the decision was not to his financial advantage. Despite the costs incurred and further concerns as to D5’s continued influence, further to the above, the particularly unusual circumstances of C1’s case including his vulnerability called for leave to be given under s.4 1975 Act and r.38.7.