The claimant had been severely injured in a road traffic accident, and had settled her claim for damages. It was not appreciated at the time that she lacked capacity to make such a decision. The court was now asked what it should consider on considering an action to re-open such a case.
Held: The appeal succeeded. The judge had not explored the correct issues having said: ‘when the court is considering if the consent order might be set aside on grounds of lack of capacity, the fundamental question for the court when considering this issue of capacity historically, is confined to examining the decisions in fact required of the claimant in the action as drafted.’
The proper question, as settled by Masterman-Lister and Bailey, was whether the claimant had the necessary capacity to conduct the proceedings or, to put it another way, the capacity to litigate. He was not to concentrate merely in the terms of the proposed compromise, and: ‘capacity to conduct proceedings includes . . the capacity to give proper instructions for and to approve the particulars of claim, the claimant lacked that capacity. For her to have capacity to approve a compromise she needed to know . . what she was giving up and, as is conceded, she did not have the faintest idea that she was giving up a minor fortune without which her mental disabilities were likely to increase. If the litigation had been conducted properly, it would have been conducted differently.’
Ward LJ concluded: ‘Since capacity to conduct proceedings includes . . . the capacity to give proper instructions for and to approve the particulars of claim, the claimant lacked that capacity. For her to have capacity to approve a compromise she needed to know . . . what she was giving up and, as is conceded, she did not have the faintest idea that she was giving up a minor fortune without which her mental disabilities were likely to increase.’
Ward, Lewison LJJ, Sir Mark Potter
[2012] EWCA Civ 397
Bailii
England and Wales
Citing:
Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
Cited – Bailey v Warren CA 7-Feb-2006
The appellant had been severely injured in a road traffic accident. He settled his claim for damages before action, but his solicitors failed to make proper arrangements to allow for his lack of mental capacity. A claim for damages was then brought . .
Appeal from – Dunhill v Burgin QBD 7-Mar-2011
The claimant asked that a settlement of her personal injuries claim be set aside on the basis that it had been made at a time when she lacked capacity, and that the agreement had required approval by the court which was not sought. The parties were . .
Cited by:
At CA – Dunhill 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.
Updated: 04 August 2021; Ref: scu.459677
