Medically Unfit to Stand Trial Application

Medically Unfit to Stand Trial Application sprouts by virtue of the application on such grounds in the case of Financial Conduct Authority (FCA) v Avacade Ltd & Ors [2020] EWHC 26 (Ch). The Third Defendent on medical ground sought to vacate a trial on the grounds of unfitness. The application was dismissed.

An earlier application had been made by both the Third Defendent and the Fourth Defendent. The Court’s view of that application disposed of by His Honour Judge Pelling QC, was that the medical evidence was “not sufficiently strong to justify the stay sought in light of the other factors at play, including in particular the risk to the trial date in a case of substantial public interest.”.

Craig Lummis (the Third Defendant) issued another application asserting that he was “suffering from severe adjustment disorder, and his ill health was preventing him from properly participating in the proceedings“.

The Court acknowledged that Mr Lummis was suffering “from serious mental health issues, which are causing him distress and functional impairment” but was unclear that he could not participate in a trial.

A Doctor’s “sick note” was referred to that appeared to suggest Mr Lummis’ suicide risk could increase by engagement in a trial. The Court’s view was “What is presented is an all-or-nothing response, which in the circumstances and for the reasons given above is deeply unattractive.“.

The Court looked at various authorities on the matter and notably started with Levy v Ellis-Carr [2012] EWHC 63 (Ch) in which Norris J gave guidance on the assessment of the medical evidence relied on for an adjournment application:

“Such evidence should identify the medical attendant and give details of his familiarity with the party’s medical condition (detailing all recent consultations), should identify with particularity what the patient’s medical condition is and the features of that condition which (in the medical attendant’s opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion and what arrangements might be made (short of an adjournment) to accommodate the party’s difficulties. No judge is bound to accept expert evidence: even a proper medical report falls to be considered simply as part of the material as a whole (including the previous conduct of the case). The letter on which the Appellant relies is wholly inadequate.”

https://www.bailii.org/ew/cases/EWHC/Ch/2012/63.html

The Court went through some of the other authorities and then the following observations were made:

“Dr Nichols’ letter of 16 December 2019 that Mr Lummis had full mental capacity. That suggests to me that he is capable at least to some degree of engaging with the issues in the case, difficult though that may be for him to do.“

“Mr Craig Lummis was actively involved in October 2019 in analysing the FCA’s disclosure. This again is consistent with the idea that some degree of engagement with the ongoing litigation is practically possible.“

“Mr Akal’s conclusion that Mr Craig Lummis’ conditions are treatable and can be resolved within a time frame“

However, in the earlier application for a stay, a report from a consultant psychiatrist appeared to present a whole other vista. A delay would not necessarily produce any improvement to the condition: “Mr Akal’s confident prognosis was not shared by Dr White in his report. Dr White is a senior psychiatrist and a qualified medical practitioner. Mr Akal is not. He is a professional psychologist. Of course, Dr White’s diagnosis was also different. He did not identify PTSD as a condition affecting Mr Lummis. Neither has anyone else prior to Mr Akal. I note that the 5 December 2019 sick note referred to Mr Lummis presenting with “acute depressive symptoms and suicidal ideation secondary to stress related to the upcoming court proceedings”. This reflects Dr White’s earlier assessment that Mr Lummis was suffering from “severe adjustment disorder secondary to the various issues which are the subject of this case”. It was in this context that he gave his more cautious assessment at paragraph 28 of his report, namely that, although he could see merit in some delay in the proceedings, “I cannot say absolutely that such a delay will result in improvement“. Dr White’s diagnosis and prognosis were relied on originally by Mr Lummis as the basis for his application in his witness statement of 15 December.“

Instead of going back to Dr White who appeared happy to see Mr Lummis again, instead he went to see Mr Akal.

The Court then concluded: “This all leads me to the conclusion that there is a material risk that Mr Craig Lummis’ conditions either will not be resolved or will recur at some future stage, even if there is presently an adjournment.“. The application was dismissed.