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Oliver Lewis and Beth Grossman appear in Court of Appeal on contempt and capacity

Oliver Lewis and Beth Grossman appeared in the Court of Appeal in a novel case about how an appeal court should proceed if capacity to conduct the appeal is in question. 

Having been held by Poole J to be in contempt of court for breaching injunctive orders compelling her to remove material from the internet, with a custodial sentence imposed, the contemnor sought to appeal to the Court of Appeal. 

Oliver and Beth were instructed to represent the contemnor/Appellant. However, they and their instructing solicitor were concerned that she lacked capacity to conduct the appeal. With the question of litigation capacity being unresolved, they appeared without instructions in order to assist the Court as to the appropriate route for resolution of the capacity determination and the appeal. 

The Court of Appeal granted permission for a psychiatrist to conduct a desk-review as the Appellant did not want to engage in an assessment. The psychiatrist concluded that that the Appellant was unable to use and weigh information relevant to conducting the appeal and that “the information available suggests the possibility of a delusional disorder”

Lady Justice King noted that Oliver, Beth and their instructing solicitor Michael Barrett of Burke Niazi “were at all times diligent in reminding the Court that they did not act upon the Appellant's instructions and were not making submissions to the Court, but merely assisting by way of providing information and presenting the Court with a number of alternative ways to progress the matter.” She commented that the appellant’s legal team “have acted wholly in accordance with their respective codes of professional practice and having had concerns about the Appellant's capacity to prosecute her appeal, brought the matter to the Court for directions.”

Following written and oral submissions, the Court confirmed that it had all the powers of a lower court in relation to an appeal and therefore was able to make an interim declaration that the Appellant lacked litigation capacity. The Court invited the Official Solicitor to act as interim litigation friend. 

The Court sent the case back to the Court of Protection to determine the Appellant’s capacity to conduct the appeal proceedings. Once the Court of Protection has determined litigation capacity, the case will return to the Court of Appeal on a firmer capacity footing for consideration of the appeal in relation to contempt. 

The judgment is available here

For more information, please contact our Court of Protection clerks Rachel Finch or Emily Norman