Key considerations for vulnerable adults who are in a dispute concerning jointly owned property

Vulnerable adults are at a high risk of being coerced or manipulated in relation to property. For example, the victim of an abusive relationship might be pressurised into agreeing a 50:50 split in the equity of a property, even if they contributed more than 50% to the purchase price. Or a partially sighted person might sign a document which (they believe) declares that they shall own 75% of the equity in that property, but the document says that they shall own just 10%. Or an elderly person may be persuaded to put their adult son or daughter on the title deeds of a property, without realising the consequences.

The court is required, so far as practicable, to ensure that vulnerable parties can participate fully in proceedings and can give their best evidence. Factors which the court believes may cause vulnerability in a party or witness include but are not limited to:

• Age
• Communication or language difficulties, including literacy
• Physical disability or impairment, or health condition
• Mental health condition or significant impairment of any aspect of their intelligence or social functioning including learning difficulties
• The impact on them of the subject matter of, or facts relevant to, the case (an example being having witnessed a traumatic event relating to the case)
• Their relationship with a party or witness (examples being sexual assault, domestic abuse, or intimidation, actual or perceived)
• Social, domestic, or cultural circumstances.

If you are a vulnerable person and you wish to commence court proceedings, or if you are a vulnerable person and someone brings court proceedings against you, there are some important issues to consider. These considerations are also relevant if you are appointed to act on behalf of a vulnerable person, perhaps as an attorney or court appointed deputy. Some of these issues are discussed below.

Litigation capacity

Litigation capacity is defined as the ability to conduct and participate in legal proceedings.

Factors relevant to litigation capacity may include the ability to understand the information relevant to one’s case; weigh that information in the decision-making process; communicate decisions; and understand the consequences of those decisions.

Vulnerability and litigation capacity are not mutually exclusive. Indeed, the law presumes that a person has litigation capacity unless there is evidence to the contrary. If it is unclear whether a person has litigation capacity, a litigation capacity assessment can be obtained from an appropriate medical professional. It would be sensible to do this before a legal claim is commenced.

A person who lacks litigation capacity is known as a protected party within the proceedings. A protected party’s interests must be protected by the appointment of a litigation friend who will conduct the proceedings on their behalf. Where the person has an attorney or deputy appointed, that person could apply to be appointed as litigation friend. Otherwise, the Official Solicitor may be approached in cases where there is no other suitable person who is able and willing to act as litigation friend.

Special measures

Court proceedings, particularly trials, are a stressful process. Few people enjoy being cross-examined by their opponent’s barrister. Also, cases involving jointly owned properties tend to be very fact specific: it is not unusual for a party to be grilled on very personal information, such as their previous sexual relationships or living arrangements. 

If you are a vulnerable person, you may feel the stress of cross-examination more strongly than other people, particularly if your opponent has been abusive to you in the past.

The good news is that the court has the power to put special measures in place to assist vulnerable parties. Special measures may include:

• Preventing a party or witness from seeing another party or witness using screens
• Allowing a party or witness to give evidence remotely by video conference
• Hearing the evidence of a party or witness in private
• Dispensing with the wearing of wigs and gowns
• Admitting pre-recorded video evidence
• Questioning a party or witness through an intermediary
• Using a device or other aid to help a party or witness communicate.

This means that if a party involved in the proceedings is identified as vulnerable, the court should consider appropriate directions to ensure that the vulnerable party’s ability to give evidence or take part in the proceedings is not diminished because of their vulnerability.

For example, if a party/witness is partially sighted, the court may give directions for a specially enlarged trial bundle to be prepared.  

If you consider that you are vulnerable, you should tell the court at the earliest possible stage in the proceedings. This will increase the likelihood that the court will allow appropriate special measures to be put in place for you.

Alternative dispute resolution

Court proceedings are not the only method of resolving a dispute concerning jointly owned property. An appropriate form of alternative dispute resolution, such as a civil mediation, can be a cost-effective and relatively stress-free way of reaching a settlement. Mediation is an option even if court proceedings have already commenced. 

Mediation can either take place remotely via video-link or in person. If it takes place in person, each party can have a private room, so that the parties can consult privately with their solicitors. A trained and neutral person (the mediator) will facilitate negotiations between the parties and will shuttle back and forth between the two rooms to pass on messages. So, you do not ever have to be in the same room as your opponent.  

If settlement terms can be agreed, typically this will be documented at the mediation by way of a written agreement which will be signed by each party before they leave. This ensures that the terms of the agreement will be binding on both parties.

Summary

Resolving a dispute concerning jointly owned property can be difficult at the best of times. It can be even harder if you are vulnerable.

At Birketts, we understand how important it is to support our vulnerable clients and/or their representatives and we have the skills and experience to provide you with comprehensive, sympathetic assistance at every stage of your dispute.

Our Home Ownership Disputes Team specialises in resolving disputes concerning jointly owned property. The relevant legislation is the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA).

Our Court of Protection Team is able to advise and provide support in respect of all areas of Court of Protection law from general deputyship applications and administration, to more complex applications and appeals.

To discuss your needs, contact us today.