Commentary
Readers are bound to have some sympathy with the experts in this case. The defendant self-referred to them and it appears that he did not tell them why he wanted to be assessed. That being so, it is hardly surprising that they did not relate their clinical conclusions to the civil proceedings in which he was a defendant.
In short, the case illustrates a very common situation in which, on the basis of what is often an appropriately diagnosed psychological condition or mental disorder, it is asserted that a litigant is not capable of participating in legal proceedings. In criminal cases, in relation to the accused, the issue is usually fitness to plead and stand trial. In civil proceedings the issue is litigation capacity. As is often the case, the court’s decision is influenced by how the litigant has functioned in previous cases or earlier in the instant proceedings.
Learning points
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An expert instructed in a case of litigation capacity should have regard to the litigant’s general practitioner records.
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Have regard to how the litigant has functioned in previous cases or earlier in the instant proceedings.
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When considering litigation capacity in a civil case or the fitness to plead and stand trial of an unrepresented defendant, the comparator is a litigant in person or unrepresented defendant who does not have the psychological condition or mental disorder with which the litigant or defendant is diagnosed.
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ADHD or dyslexia does not necessarily prevent effective participation in legal proceedings.
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When considering the likely impact of ADHD or dyslexia, have regard to the litigant’s occupational or professional achievements.
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If, as a result of a litigant’s psychological condition or mental disorder they require help or intervention in legal proceedings, provide specific and tailored recommendations to that effect.
Case
The proceedings concerned a property in Kilkenny ("the Property") which the Defendant (who was not the Mortgagor) was unlawfully occupying. At a directions hearing on 26 September 2024 the Defendant disclosed that he had recently been diagnosed with attention deficit hyperactivity disorder ("ADHD") and sought to adjourn the 29 October 2024 hearing accordingly. His grounding affidavit exhibited the report of two psychologists, Dr Carol O'Dwyer and Aoife Keating and asserted that the Courts Service was in breach of the Disability Act 2005 s 26 in the absence of a facility or process to deal with someone with a cognitive disability whereas s 26 requires public bodies:
"to ensure that their services are accessible for persons with disabilities by providing integrated access to mainstream services where practicable and appropriate"
The affidavit also stated that the Courts Service's lack of facilities was
"in clear breach of articles by The Human Rights and Equality Commission and Persons with disabilities under the European Convention on Human Rights which I feel is a degrading treatment (Article 3 of the Convention) over the lack of empathy, facilities and processes available to me by the Courts Services. Discrimination is when someone treats you worst or 'less favourably' than another person is, has been, or would be treated, in a similar situation, because you fall under the 'protected grounds'."
The affidavit also exhibited correspondence with the Courts Service in relation to the services available together with a report of the National Disability Authority and stated that any past mistakes or errors on his part were the result of his undiagnosed disability and that there had been no intention to mislead.
Expert evidence
The genesis of the Accredited Clinical Psychologist's 16 September 2024 report was significant. The Defendant self-referred, without reference to the general practitioner, who had been treating him for depression. The general practitioner was not informed of the legal proceedings. The report noted that the Defendant sought assessment:
"following long-standing attentional and behavioural concerns querying a possible diagnosis of attention deficit hyperactivity disorder."
The Defendant informed the authors of the report that he required the assessment:
"to understand himself and his past behaviour, to 'close that chapter' and move onto the next stage of his life in peace."
The report
a. confirmed that the Defendant
"meets the criteria for a diagnosis of Attention Deficit Hyperactivity Disorder (combined presentation) with co - occurring Specific Learning Disorder with impairment in spelling (dyslexia)."
b. summarised the Defendant's account of his concerns, included his experiencing intense bouts of anger throughout his life, his difficulty controlling his emotions followed by guilt and regret, struggles to listen to conversations or to follow through on tasks, his education difficulties with deficits in reading and comprehension, creating a sense of constant anxiety and hypervigilance.
c. showed that the Defendant's composite scores for his self-reporting questionnaire fell in the "Markedly Atypical/Very Significant Problem" range for Focus, Effort, Emotion, Memory and Action. His Activation score fell in the "Moderately Atypical/Significant Problem" range.
d. referred to his requiring two attempts to complete an online ADHD test, concluding that the Defendant
"has a High Level of ADHD symptoms when compared to the general population."
e. summarised the Defendant's account of his inattentiveness, tendency to lose focus or become distracted, noting that previously his ex-wife organised his tasks, telling him what to do and what to bring and his current partner now helps him keep track of appointments and responsibilities.
f. placed his overall cognitive ability and perceptual reasoning in the very low range for his age; his verbal comprehension and working memory abilities were average.
g. concluded that he met the criteria for an ADHD diagnosis and contained (apparently generic) information about possible treatment options and strategies.
The Defendant submitted that:
a. "disability" includes physical, intellectual, mental and emotional conditions and his application for a stay was based on evidence which wasn't available at the injunction hearing and which would have affected the outcome as the judgment referred to issues which he attributes to his cognitive disability as a litigant in person. The outcome
"could have been completely different had the honourable judge been aware of this at the time to take this into consideration".
b. Submitted that the Courts Service had made it unduly difficult to avail of any services in the absence of reasonable accommodation and did not have the processes or facilities required pursuant to the Disability Act 2005. He alleged degrading treatment and discrimination contrary to the European Convention on Human Rights and cited sundry sources, including the European Parliament's Recommendation 1592 (2003) as support for the proposition that
"there was a European and worldwide consensus on the need to protect people with disability from discriminatory treatment (Glor v Switzerland, 2009, 54) which included an obligation for the states to ensure "reasonable accommodation" to allow persons with disabilities the opportunity to fully realise their rights, and a failure to do so amounted to discrimination."
c. Having referenced his rights to a fair trial and to an effective remedy, submitted that the injunction judgment was unsafe, as the Court Service failed in their duty towards him "which had a serious effect in the judgement outcome".
d. Complained that his cognitive disability controlled his life, it was like climbing Mount Everest on a daily basis, that he was required to face this hurdle regardless of the stress and anxiety it subjected him to and that the proceedings had been stressful due to the short timeframes afforded to him but that he could deal with motions once they were separated on a one at a time basis.
e. Noted that service providers were obliged to do all that is reasonable to accommodate the needs of the person with the disability, asserting that the Court Service had not helped him which was discriminatory and the Plaintiff accordingly had an unfair advantage. Accordingly, the case should be extended until the plenary hearing and any motions should be dealt with one at a time because over the last 12 months he had been
"emotionally overwhelmed, suffering from brain fog lack of focus, task paralysis and burnout, it is totally unreasonable and unrealistic to expect someone with a Cognitive Disability to work at the same pace, speed, or ability as (the Plaintiff's counsel)."
f. Responded to the court’s previous encouragement to him that he retain solicitors or bring a friend to court. He was waiting to hear from solicitors and two friends who he would have chosen to bring to court were unavailable.
The Plaintiff’s submission
(a) it was a novel application. Many people operate with ADHD but it has never derailed legal proceedings or required their truncation; (b) the report did not refer to the legal proceedings, calling into question whether he informed the doctors of the proceedings and no weight should be attached to it; (c) the conditions and alleged brain fog etc had not inhibited the Defendant to date. He had initiated approximately 20 motions or affidavits and had not been inhibited in his defence of the proceedings.
The Defendant’s response
He emphasised that he had been diagnosed with dyslexia as well as ADHD. He said that he had not told the psychologists about the proceedings because the referral was purely on medical grounds. He saw no need to mention proceedings. ADHD testing was stressful enough without referencing the litigation. He had received help with the affidavits from others, which explained his ability to file the various documents, notwithstanding his condition. He acknowledged that many people have ADHD and that the condition covers an array of different things, submitting that some people have coping skills but that he didn't, having been diagnosed late in life, which is why he had recently sought help.
Decision
The report confirmed the Defendant's diagnosis as far as it went. The court accepted that the Defendant might well suffer from ADHD; indeed, both sides noted that the condition is not uncommon within the general population. The court accepted that many Irish people have experience of the condition, personally or through friends or family, and the experience of people with the condition may vary. The evidence before the court would not justify a conclusion that the condition generally prevents all persons with ADHD or dyslexia from effective participation in legal proceedings nor was the court satisfied that this was the case here.
The court accepted for present purposes that the Defendant might have been under a genuine misapprehension as to the significance of the Banks' repossession proceedings and the July 2016 Order. It was not clear to the court that any such misapprehension was attributable to his recently diagnosed condition and the credibility of this explanation was reduced since he was assisted in the preparation of his affidavits and other filings. The court noted ongoing issues with the timing, content and organisation of the affidavits and other documents filed and served (or not properly filed and served) by the Defendant and had emphasised his obligation to ensure that all documents were duly filed (and served on the Plaintiff) and that documents were lodged in accordance with the applicable practice direction (which was furnished to the Defendant). However, such issues are often encountered in the case of unrepresented parties and the court was not convinced that particular significance should be attributed to them in this case in the light of the Defendant's recent diagnosis particularly since he had confirmed the assistance available to him. Most importantly, having observed the Defendant on many occasions and having benefitted from his wide ranging oral and written legal submissions, the court was satisfied that the Defendant was well able to understand the proceedings and the legal principles and to articulate his position.
Many of the Defendant's criticisms were directed at the Courts Service's alleged failure to respond to his condition which he described as discriminatory, prejudicial and a breach of his ECHR rights. There were significant factual and legal issues with such contentions, including, for example: (a) how the Courts Service could be expected to respond to a condition which, according to the Defendant was only diagnosed in mid-September (b) whether the diagnosis constitutes a "disability" within the meaning of the Disability Act 2005, which defines the term at s.2(1)as:-
"a substantial restriction in the capacity of the person to carry on a profession, business or occupation in the State or to participate in social or cultural life in the State by reason of an enduring physical, sensory, mental health or intellectual impairment";
and (c) the nature of the support which the Courts Service could reasonably be expected to proffer. None of these points were sufficiently addressed by his submissions or medical evidence. In any event, the Defendant did not appear to have availed himself of the applicable procedures under the Disability Act, including the complaints and inquiry processes under s.38 & 39.
The court’s concern was the fair conduct of these proceedings and whether the Defendant was or had been prejudiced in his ability to defend them. The court was not satisfied that this had been the case. The court placed little weight on the psychologists' report because:
a. The court found it difficult to credit the Defendant's submission that the report was for medical rather than legal reasons. Its timing suggested otherwise, as did the fact that it was on the basis of a self-referral, with no briefing from his GP as to his medical history including his treatment for depression (omissions which themselves reduced the reliance that could be placed on such a report).
b. he failed to disclose the existence of these proceedings to the psychologists or the possibility that he would exhibit the report in the proceedings.
c. it diagnosed him as experiencing conditions (ADHD and dyslexia) which, both sides acknowledged in submissions, were scarcely unique to the Defendant but it did not prescribe specific treatment. Nor did it conclude that the condition had the prejudicial effect on his ability to defend these proceedings which he sought to infer.
The judge referred to his recent judgment in Lynch v Motor Insurers' Bureau of Ireland [2024] IEHC 587 which sets out the standards applicable to such evidence. For expert evidence to be admissible, the Court must be satisfied not only of their expertise and credentials, but also that they have given an independent opinion, in the knowledge of their duty to the Court and based on an objective assessment of all relevant evidence. The authors of the report were not instructed to proceed on that basis, and the court was not satisfied that their report met that standard. In particular, it did not go beyond a high level diagnosis - it stopped short of specifying treatment or gauging the impact on the Defendant's ability to participate in the proceedings, and it was not appropriate for the Defendant to endeavour to supplement this lacuna in his oral submissions, particularly since the court had very clearly explained the evidential requirements to him in September. The court would have expected that if the authors were concerned that the diagnosis meant that the Defendant required help or intervention then there would have been specific and tailored recommendations to that effect.
Most importantly, the report failed to consider what, if any, impact the conditions might have had on the Defendant's defence of the proceedings to date because he did not disclose the full background to the experts (and his explanation of his reason for seeking the assessment was incomplete). The court accepted that he found the assessment difficult and was inhibited in discussing the issues, but his failure to be more open with the psychologists necessarily reduced the weight to be placed on their report.
The court accepted that the term "disability" may include certain intellectual, mental and emotional conditions but it was not necessary for the court to determine in these proceedings whether ADHD or dyslexia constituted a disability for the purposes of the Disability Act 2005, either generally or in the Defendant's case. The court had no reason to doubt that the Defendant may suffer from ADHD and dyslexia (as do, it was conceded, a significant proportion of the population) but it had seen no evidence that he had been prejudiced or discriminated against in the proceedings. To the contrary he had consistently been afforded considerable latitude.
The Defendant's report [sic] was in generic terms in terms of possible treatment options, failing to identify a specific requirement relevant to the proceedings. No such need had been identified beyond the general diagnosis of ADHD and dyslexia. The court also observed that the Defendant represented himself at several hearings. He was well able to present and articulate his position. He made wide ranging submissions citing numerous authorities, Latin maxims and legal principles and consistently showed himself well able to defend the proceedings. While the court generally did not accept his submissions or their application to this case, his comprehensive defence to date undermined his assertion that he was prejudiced in his ability to contest the proceedings. Accordingly, the court agreed with the Plaintiff that the diagnosed conditions had not inhibited the Defendant's defence of the proceedings or his advocacy. The court also noted that the Defendant is a retired company director having founded his own transport and freight business which operated in Ireland, the UK and in Europe. It seemed to have been a significant enterprise. The fact that the Defendant was able to found, manage and operate such a business suggested that he could be perceived as reasonably "high performing" in that context notwithstanding his diagnosis. The report did not address this issue.
The court did add that if it was inclined to attach any weight to the medical evidence, it could go some way to explaining actions and statements made by the Defendant in the proceedings and the contradictions in his evidence, showing there was no intention to mislead. However, even if ADHD and dyslexia might explain his failure to explain the contradiction in his affidavits and his failure to refer to the Banks' proceedings or the July 2016 Order, they would not change the reality that the objective facts on those points undermined his position. For the same reason the diagnosis would not have affected the ultimate outcome of the injunction application.
The court was satisfied on the balance of probabilities that the outcome would have been the same if it had been aware of his conditions at the time of the judgment.