Judges will not tolerate any watering down of the powerful protection given to elderly, infirm or otherwise vulnerable people who lack the mental capacity to conduct litigation. The High Court made that point in overturning a bankruptcy order made against an 81-year-old Alzheimer's disease sufferer.

Acting in his capacity as liquidator of a company, an insolvency practitioner lodged a bankruptcy petition against the man, who was said to owe judgment debts totalling about £60,000. A letter written either by the man or by his daughter was placed before the judge who heard the petition, in which an adjournment of the matter was sought on grounds of ill health.

The letter was accompanied by a note, apparently from the man's GP, which stated that he had been diagnosed with dementia about three years previously. There was also a report, on the face of it from a trainee doctor, which confirmed a diagnosis of Alzheimer's disease.

The judge, however, found that the debts remained outstanding and that the man's illness was not strictly relevant to the formal application. It was not completely clear from the evidence that he was incapable of attending court to represent himself in person. The judge refused to adjourn the matter and made the bankruptcy order in his absence.

Upholding the man's appeal against that order, the Court noted that a consultant in old-age psychiatry had since examined him and recorded a history of progressive cognitive decline over an eight-year period. A CT head scan indicated that he was suffering from cerebrovascular disease and global cortical atrophy. Although well cared for by his family, he was unable to leave home on his own.

On the evidence before him, it was held that the judge at the hearing of the bankruptcy petition should have expressly addressed the issue of whether the man had the mental capacity to act as a litigant in person. Had he done so, he would inevitably have concluded that a litigation friend should be appointed to represent the man's interests and that no further steps should be taken in the bankruptcy proceedings until that was done. The order was therefore wrongly made and unjust in that it arose from a serious procedural error and the bankruptcy order was overturned.

Although this case is not suggesting that people suffering with illness which may affect their mental capacity cannot be made bankrupt, it is clear that to enable such an order to be made, it is incumbent upon the court and perhaps the petitioning creditor to ensure that there is a third party properly appointed to represent such a person’s interests before any orders can be made.

For any issues arising out of bankruptcy proceedings please contact Leanne Schneider-Rose  l.schneider-rose@sydneymitchell.co.uk on 08081668827.




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