The courts must take account of a party's mental disabilities when granting orders for possession.

In Knowles v Knowles, the defendant was severely mentally disabled. He failed to comply with the terms of a consent order and the claimant applied for a possession order. The defendant did not attend that hearing as he was too unwell and was not represented. The defendant later applied to set aside that order. The judge found the defendant to be lucid and articulate and that there was no sufficient reason for his non-compliance with the earlier consent order. He refused to stay the writ of possession. The defendant contended that in making the contested orders the judge had failed to take sufficient account of his mental disabilities and that he had been unrepresented at crucial hearings. He also alleged that without legal representation, he had not realised the importance of complying with the terms of the consent order.

The Court of Appeal confirmed that the courts are acutely aware of the problems of unrepresented persons appearing against represented persons and that fact is taken into account in decision making. Although the defendant did have a serious mental disability, the evidence he provided did not indicate that, by reason of that disability, he had been unable to comply with the terms of the various orders. That was fatal to the defendant's arguments. The judge had given consideration to the defendant's problems and had exercised his discretion accordingly.

Things to consider

The courts must treat all parties fairly and although they will often bend over backwards to assist an impaired or unrepresented party, they cannot treat such a party more favourably if the nature of the disability or non-representation has no baring on the order being made or that party's ability to comply with it.