Autistic Litigant Received a Fair Hearing

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In the context of a case in which an autistic son challenged his father’s will, the Court of Appeal has given important guidance on the steps that should be taken to ensure that vulnerable litigants in person receive a fair hearing.

The son had been cut out of his father’s will in favour of his brother and had accused the latter of fraud and bringing undue influence to bear. Those allegations were dismissed by a judge, who upheld the validity of the will.

The son suffered from Asperger’s Syndrome and associated cognitive, social and communication difficulties and had initially been represented by the Official Solicitor, acting as his litigation friend. However, his legal aid funding was later withdrawn and the Official Solicitor had been unwilling to continue to act for him.

An issue therefore arose as to whether the son had the required mental capacity to litigate the matter in person. After considering expert evidence, the trial judge ruled that a fair and just hearing was possible after putting in place a number of special measures to ensure that the son was not disadvantaged.

Those measures included enabling the son to present his case via video link so that he could avoid the stress of attending court. He was provided with transcripts of evidence so that he could consider how best to question witnesses. The judge had himself tested witnesses on the son’s behalf and the latter had been allowed to view the other side’s closing submissions before submitting his own.

In dismissing the son’s appeal, the Court noted that the judge had ‘looked at the overall picture’ and dealt with the issue of capacity exhaustively. Nothing further could sensibly have been done to assist the son in presenting his case and the judge was entitled to rule that the special measures were sufficient to enable a just disposal of the matter.