Summary

There was no evidence that the defendant had not been able to comply with consent and unless orders in a possession claim as a result of his mental disability. In granting orders for possession and execution of the possession order against the defendant the judge had taken account of his problems and made no error of law or principle.

Facts

The appellant (K) appealed against a decision to strike out his defence and counterclaim and make an order for possession of a property in favour of the respondent (W), and to dismiss his application to set aside that order and grant W an order for execution of the possession order. K and W were brother and sister. K was severely mentally disabled, with 80 per cent mental impairment, as a result of injuries sustained in a car crash. K had lived with his mother (M) in her property. Following M's death, W was appointed sole executrix of the estate under M's will, of which she was also the sole beneficiary. K's challenge to the will on the ground of intestacy was unsuccessful. W issued proceedings against K seeking possession of the property. K served a defence and counterclaim based on his contention that M had promised to leave the property to him in return for his having provided substantial financial support to her whilst they shared the property. It was ordered by consent that K would deliver possession of the property to W by a certain date, to be suspended if before then K provided W with evidence that judgment debts and interest in respect of litigation from M's estate were discharged, and that K respond to requests for further information. W alleged that K had failed to comply with the consent order and an unless order was made. That was not complied with and W applied for an order for possession of the property. K did not attend that hearing, having indicated that he was too unwell, and was not represented. The judge found that where K had been present at the consent order hearing, and where he had failed to respond to requests for further information or other requests, he had no alternative but to strike out K's defence and counterclaim on the basis of non-compliance with the consent order, and therefore granted the possession order sought. K made no application for relief from sanction. Ten months later W applied for a writ of possession. K then applied to set aside the possession order. The judge found K to be lucid and articulate but that there was no sufficient medical reason to justify further delay and that K had given no sufficient reason for the non-compliance. He concluded that it would be prejudicial to W to delay completion of the administration of M's estate further, and refused to stay the possession and made an order for its execution. K, having been permitted to adduce further evidence as to his medical condition and the extent of his disability, contended that in making the contested orders the judge had erred in failing to take sufficient account of the fact that he was mentally disabled and that he had been unrepresented at the two crucial hearings. K also submitted that without legal representation he had not realised the importance of the question of compliance with the terms of the consent order. W contended that the fact that someone appeared in person and was not legally represented was not in itself a ground for setting aside an order.

Held

The courts were acutely aware of the problems of unrepresented persons appearing against represented persons and that would be taken into account by the court in deciding the appropriate way to deal with such a case. Whilst the fresh evidence did show that K had a serious disability, it did not anywhere indicate that by reason of his mental disability K had been unable to comply with the provisions of the consent order and the unless order. That was fatal to K's argument that that was a ground for setting aside the judge's orders. The judge was fully aware of K's problems and had given them consideration. There was no error of law or principle and his decision was not plainly wrong. He had made the orders in the proper exercise of his discretion and there was no reason to interfere with his decisions.

Appeal dismissed