BROGAN v. THE UNITED KINGDOM
Inadmissible
George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva
1. The applicants, Mr Alistair Brogan and Ms Lesley Brogan, are British nationals, who were born in 1964 and live in Doncaster. They are represented before the Court by Ms Matwala Vyas of Matwala Vyas LLP, a firm of solicitors based in Essex. 2. The United Kingdom Government (“the Government”) are represented by their Agent, Mr M. Kuzmicki of the Foreign and Commonwealth Office. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 16 August 2003 the first applicant purchased Dove Cottage (“the property”), apparently with the assistance of a mortgage in favour of GMAC-RFC. The property subsequently became the applicants’ main residence. Although the second applicant claims that she used some of her funds to purchase the property, it was registered in the first applicant’s sole name. 5. On 30 August 2006 the first applicant entered into a second mortgage with Kensington Mortgage Company Limited (“KMCL”). The total amount loaned was GBP 26,875.00. 6. The first applicant fell into mortgage arrears in or around mid-2008 and KMCL commenced possession proceedings against him in the County Court. 7. Around this time, the first applicant’s solicitor became concerned that he lacked the capacity to manage his own affairs. Medical reports indicated that he had Asperger’s Syndrome and a schizophrenic illness. On 20 August 2008, a few days after the claim form was issued in the County Court by KMCL, the solicitor applied to the Court of Protection for an order authorising her to act as an Interim Deputy for Property and Affairs (“Interim Deputy”) to defend, inter alia, the possession proceedings on his behalf. The Court of Protection made an order on 24 September 2008 authorising her to take control of his property and affairs and to exercise the same power over them as a beneficial owner. In doing so, the court imposed a security bond requirement on the Interim Deputy in the sum of GBP 50,000 in favour of the first applicant. 8. The Interim Deputy thereafter informed KMCL that there was money available to pay the arrears and make advance payments. 9. The possession claim was heard on 6 October 2008. The first applicant did not attend and was not represented, although a letter from him was submitted to the court. The contents of that letter are not known. KMCL indicated to the court that the first applicant had made no payments on the mortgage since 11 April 2008. Consequently, the District Judge ordered that he give KMCL possession of the property before 3 November 2008. 10. The Office of the Public Guardian commissioned a Court of Protection Visitor to meet with the applicants and the Interim Deputy on 19 March 2009. The visitor was (incorrectly) told by the Interim Deputy that all payments on the mortgage were up to date. He also noted that the applicants’ situation was “very difficult and unstable” and seemed to be “on the edge of crisis” as the second applicant was unwell and might not be able to continue to care for the first applicant. 11. In mid-2009 the second applicant complained to the Office of the Public Guardian about the conduct of the Interim Deputy. In particular, she claimed that the Interim Deputy had failed to use funds of GBP 25,000 to discharge the mortgage arrears and that she had been on sick leave for five weeks and was not dealing with her deputyship duties. KMCL also complained about the Interim Deputy’s conduct, both to the Office of the Public Guardian and to the Law Society. They claimed that they had discontinued possession proceedings after the Interim Deputy had verbally agreed a settlement with them but that she had subsequently reneged on that agreement by insisting, without foundation, that KMCL pay her costs. Following the complaints, the Office of the Public Guardian launched an investigation into the activities of the Interim Deputy. 12. The second applicant subsequently withdrew her complaints against the Interim Deputy unreservedly. In a report dated 18 July 2009 the Office of the Public Guardian found that there had been a dispute between KMCL and the Interim Deputy which should be resolved between the parties. It also found that there had been a dispute between the Interim Deputy and her firm which resulted in her leaving the firm and working from home. Following a period of claimed ill-health, she had resumed activity in the affairs of the first applicant. The Office of the Public Guardian therefore closed its investigation. 13. On 16 December 2009 KMCL obtained a warrant for possession from the County Court. On the same date, a Notice of Eviction was sent to the first applicant “and any other occupiers” at Dove Cottage, stating that the eviction would take place on 14 January 2010. 14. By 6 January 2010 an application had been made on the first applicant’s behalf to suspend the eviction. A further application appears to have been made to “withdraw” the warrant of possession. 15. Both applications came before a district judge on 8 January 2010, on which date the first applicant appears to have been represented by the Interim Deputy. The applications were adjourned. 16. On 25 January 2010 the Court of Protection ordered a report into the management and administration of the property and affairs of the first applicant by the Interim Deputy. The report was prepared by the Office of the Public Guardian and published on 21 April 2010. The report noted that on her appointment, the Interim Deputy had advised KMCL that there was sufficient money in the Brogan’s client account to pay their arrears. However, KMCL informed the Office of the Public Guardian that the Interim Deputy had “made no attempt to pay the outstanding arrears or to ensure that mortgage payments are going forward”. In fact, she had entered into a verbal agreement to pay the arrears but then reneged on the agreement leaving KMCL no alternative but to seek possession. The report concluded that the Interim Deputy was struggling with her general, day-to-day duties and that there was a worrying – and unexplained – disparity as to the disbursement of approximately GBP 27,000 received into her employer’s client account in September 2008. Although the Court of Protection Visitor’s Report stated that all payments were up to date and that the GBP 25,000 received in September 2008 had been used in paying the arrears of the mortgage, in mid-2009 those funds were still in the client account. The report concluded that the first applicant’s best interests had not been served by the Interim Deputy. 17. On 21 May 2010 the adjourned applications to suspend and withdraw the warrant for possession were heard by a district judge. Both parties were represented by counsel at the hearing. However, the applications were dismissed and the possession warrant was returned to the bailiff for a new eviction date to be set. 18. On the same day the Interim Deputy’s authority to act in the possession proceedings came to an end. 19. Nevertheless, it appears that the Interim Deputy filed an application for permission to appeal against the district judge’s decision of 21 May 2010 on behalf of the first applicant without any authority to do so. The application was dismissed on 28 May 2010 at a hearing at which both parties were represented. 20. On 1 June 2010 the applicants were evicted from the property. 21. On 4 June 2010 the Interim Deputy made a further application to set aside the first applicant’s credit agreement with KMCL on the ground, inter alia, that he had not had the mental capacity to enter into it in 2006. This application was not made with the authority of the Court of Protection. On the same date the second applicant applied to join the application on the ground that she had also been in occupation of the property, she had an interest in the property and she was left homeless after KMCL were granted possession. She wrote to the court, setting out details of the first applicant’s mental health problems and outlining her own health concerns (including severe spondylosis, sciatica, heart disease, angina and depression). 22. On 8 July 2010, the Court of Protection revoked the appointment of the Interim Deputy with immediate effect. However, she was appointed as the first applicant’s Deputy limited to the single issue of making an application on his behalf for public funding to apply for judicial review of the decision of 28 May 2010. This appointment was to expire on 28 October 2010 unless extended by the Court. 23. On 14 July 2010, following a hearing at which the parties were represented by counsel, the District Court Judge dismissed the application to set aside the credit agreement and join the second applicant to the proceedings. The second applicant was ordered to pay KMCL’s costs of the application, which were assessed in the sum of GBP 5,765.06. Permission to appeal was refused. 24. On 3 August 2010, the applicants, through the Interim Deputy (again acting without authority), sought to appeal against the order of the District Court Judge. In particular, they submitted that there had been no consideration of their rights under Article 8 of the Convention. 25. On 30 November 2010 the Court of Protection gave the applicants’ daughter, Kate, authority to act as the first applicant’s litigation friend at the appeal hearing. 26. The appeal was heard on 3 December 2010. The judge found that the first applicant was not validly a party to the purported appeal as the Interim Deputy had not had authority to issue it. The second applicant and her representative were not able to attend the hearing owing to difficult weather conditions. Her appeal was dismissed as totally without merit and she was ordered to pay costs of GBP 4,863. The Interim Deputy was joined to the proceedings and was ordered personally to pay to KMCL costs in excess of GBP 10,000. 27. According to the applicants, following the eviction the first applicant spent ten days without his maintenance medication, which caused a temporary deterioration in his condition. The applicants initially lived with their youngest daughter in a van before all three moved to a tent in another daughter’s garden. They stated that during this period the first applicant attempted suicide on two separate occasions. The family later stayed in a hotel for 10 days before moving into a rental property from October 2010 onwards. 28. The medical evidence submitted to the Court indicates that the first applicant has a history of mental illness and had made a number of suicide attempts prior to the eviction proceedings which are the subject of his complaint to the Court. While there is some evidence to support the assertion that he also attempted suicide following the eviction, this attempt appears to have taken place while he was in custody and psychiatrists were establishing his fitness to plead in respect of a prosecution for conspiracy to defraud. 29. Section 16 permits the Court of Protection to appoint a Deputy to act on behalf of a person who lacks capacity in relation to matters concerning either his personal welfare or his property and affairs. However, the powers conferred on the Deputy should be as limited in scope and duration as is reasonably practicable in the circumstances and the court may revoke the appointment of a Deputy or vary the powers conferred on him if it is satisfied that he has behaved, is behaving, or is proposing to behave in a way that contravenes the authority conferred on him by the court or is not in the protected party’s best interests. 30. Pursuant to section 18, the Deputy’s powers extend, inter alia, to the discharge of the protected person’s debts and obligations, whether legally enforceable or not. 31. Section 19(6) provides that the Deputy is to be treated as the protected person’s agent in relation to anything done or decided by him within the scope of his appointment. 32. The Office of the Public Guardian is an executive agency of the Ministry of Justice which implements the Mental Capacity Act 2005 by administering powers of attorney, supervising Deputies who manage the affairs of others and investigating and acting on allegations of abuse by attorneys and Deputies. 33. Pursuant to Regulation 33(1) of The Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 (“the 2007 Regulations”) the court may order a person to give to the Public Guardian security in the form of a bond for the discharge of his functions. 34. Pursuant to Regulation 36 of the 2007 Regulations, the court may order the enforcement of the security. 35. Possession claims are governed by Part 55 of the Civil Procedure Rules and Practice Direction 55A. With regard to land subject to a mortgage, the Practice Direction provides that at the hearing the claimant’s evidence should include the amount of any rent or mortgage arrears and interest on those arrears. These amounts should, if possible, be up to date to the date of the hearing (if necessary by specifying a daily rate of arrears and interest). 36. If relevant, the defendant should give evidence of the amount of any outstanding social security or housing benefit payments relevant to rent or mortgage arrears and the status of any claims for social security or housing benefit about which a decision has not yet been made or any applications to appeal or review a social security or housing benefit decision where that appeal or review has not yet concluded. 37. Section 36 of the Administration of Justice Act 1970 provides that: “(1) Where the mortgagee under a mortgage of land which consists of or includes a dwelling-house brings an action in which he claims possession of the mortgaged property, not being an action for foreclosure in which a claim for possession of the mortgaged property is also made, the court may exercise any of the powers conferred on it by subsection (2) below if it appears to the court that in the event of its exercising the power the mortgagor is likely to be able within a reasonable period to pay any sums due under the mortgage or to remedy a default consisting of a breach of any other obligation arising under or by virtue of the mortgage. (2)The court— (a) may adjourn the proceedings, or (b) on giving judgment, or making an order, for delivery of possession of the mortgaged property, or at any time before the execution of such judgment or order, may— (i) stay or suspend execution of the judgment or order, or (ii) postpone the date for delivery of possession, for such period or periods as the court thinks reasonable. (3)Any such adjournment, stay, suspension or postponement as is referred to in subsection (2) above may be made subject to such conditions with regard to payment by the mortgagor of any sum secured by the mortgage or the remedying of any default as the court thinks fit.” 38. Pursuant to section 55(2) – (3) of the Family Law Act 1996, which applies if a mortgagee of a dwelling house brings an action in any court for the enforcement of its security, ʺ(2) A connected person who is not already a party to the action is entitled to be made a party in the circumstances mention in subsection (3). (3) The circumstances are that— (a) the connected person is enabled by section 30(3) ... to meet the mortgagor’s liabilities under the mortgage; (b) he has applied to the court before the action is finally disposed of in that court; and (c) the court sees no special reason against his being made a party to the action and is satisfied— (i) that he may be expected to make such payments or do such other things in or towards satisfaction of the mortgagor’s liabilities or obligations as might affect the outcome of the proceedings; or (ii) that the expectation of it should be considered under section 36 of the Administration of Justice Act 1970.ʺ