Blankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust: CA 27 Jan 2015

This case concerns a claimant with fluctuating capacity to conduct legal proceedings. At a time when she had capacity, she retained a firm of solicitors under a conditional fee agreement. The issue was whether the CFA terminated automatically by reason of frustration when she subsequently lost capacity, so that it did not govern the continued conduct of the proceedings by a receiver/deputy appointed by the Court of Protection to act on her behalf. Phillips Jhad held in a clear and cogent judgment that the CFA was not frustrated.
Held: The court now gave its reasons for dismissing the appeal. ‘ . . whatever the general position, the parties must have contemplated in the particular circumstances of this case that the claimant might suffer from a further period of incapacity in which she would be unable to give instructions personally but they could be given by a litigation friend or a receiver/deputy or on her behalf. I accept Mr Spearman’s submissions on that point . . The fact that supervening incapacity prevented the claimant from giving instructions personally did not render the contract of retainer impossible of performance; it simply gave rise to a short period of delay pending appointment of a receiver/deputy who could continue the conduct of the proceedings on the claimant’s behalf and give instructions to the solicitors for that purpose.’

Richards, McCombe, Sharp LJJ
[2015] EWCA Civ 18
England and Wales
Appeal fromBlankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust QBD 5-Feb-2014
The court was asked whether, where a party loses mental capacity in the course of proceedings, such loss of capacity has the automatic and immediate effect of terminating their solicitor’s retainer. The Costs judge had held that, as a matter of law, . .
CitedLauritzen A/A v Wijsmuller BV;( ‘The Super Servant Two’) CA 12-Oct-1989
Bingham LJ discussed the nature of frustration of contract: ‘The essence of frustration is that it is caused by some unforeseen supervening event over which the parties to the contract have no control and for which they are therefore not . .
CitedDavis Contractors Ltd v Fareham Urban District Council HL 19-Apr-1956
Effect of Contract Frustration
The defendant appellants contended that their construction contract was frustrated because adequate supplies of labour were not available to it because of the war.
Held: The court considered how the frustration of the performance of a contract . .
CitedDrew v Nunn CA 1879
The supervening mental incapacity of a principal has the effect of terminating the actual authority of his agent: ‘The actual authority of an agent whether conferred by deed or not and whether expressed to be irrevocable or not, is determined by the . .
CitedImperial Loan Co v Stone CA 1892
Contract without Capacity – Voidable not Void
A person of unsound mind was sued on a promissory note. He had signed it as surety. The jury found that he was insane when he signed the note but there was no finding as to the creditor’s knowledge of such insanity. The judge entered a verdict . .
CitedYonge v Toynbee CA 1910
Solicitors conducted a whole series of interlocutory applications in the course of an action in ignorance of the fact that their client had been certified as being of unsound mind.
Held: When the action was ultimately aborted, they were held . .
CitedThe Fore Street Warehouse Company Ltd v Durrant and Co 1883
A writ had been served on the lunatic defendant’s business manager. The Court Rules provided: ‘When a lunatic or person of unsound mind not so found by inquisition is a defendant to the action, service on the committee of the lunatic, or on the . .
CitedDonsland Limited v Nicholas Van Hoogstraton CA 2002
Once a transaction in respect of which the solicitor was retained is completed, the retainer comes to an end, and with it the fiduciary relationship between client and solicitor. . .
CitedFindley v Motor Insurers’ Bureau and Another SCCO 13-Jan-2009
‘I find, therefore, that as from [the date the Claimant lost mental capacity] the Claimant was no longer able to give instructions, and the contract was at that point frustrated.’ . .
CitedDunhill v Burgin SC 12-Mar-2014
Lack of Capacity – Effect on Proceedings
The Court was asked ‘First, what is the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf (in which case the Civil Procedure Rules require that she has a litigation friend to conduct the . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract, Health

Updated: 01 November 2021; Ref: scu.541911