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 proceedings for her)? Second, what happens if legal proceedings are settled or compromised without it being recognised that one of the parties lacked that capacity’
Held: Whether a party has capacity to conduct proceedings under CPR Pt 21 depended upon his capacity to conduct the claim or cause of action which the claimant in fact had, rather than any claim formulated for her by her lawyers. A consent order based on the settlement of a claim by a claimant who did not have capacity but remained without a litigation friend was not valid whether or not she was legally represented.
Held: The test of capacity to conduct proceedings for the purpose of CPR Part 21 is the capacity to conduct the claim or cause of action which the claimant in fact has, rather than to conduct the claim as formulated by her lawyers. Judged by that test, it is common ground that Mrs Dunhill did not have the capacity to conduct this claim.
Lady Hale, Deputy President, Lord Kerr, Lord Dyson, Lord Wilson, Lord Reed
[2014] COPLR 199, [2014] UKSC 18, [2014] 2 All ER 364, [2014] WLR(D) 122, (2014) 17 CCL Rep 203, [2014] 1 WLR 933, (2014) 137 BMLR 1, [2014] RTR 16, [2014] PIQR P13, UKSC 2012/0136, UKSC 2012/0257
Bailii, Bailii Summary, WLRD, SC Summary (1), SC (1), SC Summary (2), SC (2)
Mental Capacity Act 2005, Civil Procedure (Amendment) Rules 2007 21.1(2)(c)
England and Wales
Citing:
Cited – Hart v O’Connor, O’Connor O’Connor PC 22-May-1985
(New Zealand Court of Appeal) The Board reversed the decision which had rescinded an agreement for the sale of land by a vendor aged eighty-three years and of unsound mind. In rejecting a submission that the transaction constituted an unconscionable . .
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 – Masterman-Lister v Brutton and Co and Another (2) CA 16-Jan-2003
The claimant had been funded for a personal injury claim under legal aid. He appealed against a decision that he was not a ‘patient’ and that he had been fully capable of managing and administering his affairs for many years. He lost. The . .
At First Instance (1) – 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 . .
At CA – Dunhill v Burgin CA 3-Apr-2012
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 . .
At First Instance (2) – Dunhill v Burgin (No 2) QBD 9-Nov-2012
The Court was asked whether CPR 21.10 has any application ‘where the claimant has brought a claim in contravention of CPR 21.2, so that in the eyes of the defendant and the court she appeared to be asserting that she was not under a disability?’
Cited – White v Fell 12-Nov-1987
The court was asked to decide whether the claimant had been incapable of managing her property and affairs in the context of a Limitation Act defence.
Held: There are three features to which it is appropriate to have regard when assessing a . .
Cited – Dietz v Lennig Chemicals Limited HL 1969
Before proceedings, the plaintiff widow accepted the defendants’ offer to settle her and her infant son’s Fatal Accidents Acts claim ‘subject to the approval of the court’. A summons was then issued for the court to approve that settlement. The . .
Cited – Drinkall (A Minor Who Sues By Her Mother and Litigation Friend) v Whitwood CA 6-Nov-2003
The claimant, a child, had sought damages. An agreement was made to compromise the claim. Later the child sought to withdraw from it.
Held: No court order had been made to approve the compromise, and therefore no binding arrangement existed. . .
Cited – Imperial 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 . .
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 . .
Cited – Tameside and Glossop Acute Services NHS Trust v Thompstone and others CA 17-Jan-2008
The court set out the legal principles applying when making a Periodical Payments Order in an award of damages for serious personal injury. The periodical payments payable to the claimant in respect of his care costs should be calculated by . .
Cited – McLaughlin v Daily Telegraph Newspaper Co. Ltd 15-Jul-1904
(High Court of Australia) The court considered the law on the effect of mental incapacity on a contract in the two cases Imperial Loan, and Molton v Camroux: ‘The principle of the decision seems, however, to be the same in both cases, which, in our . .
Cited – In re Grosvenor Hotel, London (No 2) CA 1964
Lord Denning MR said that the Rules Committee ‘can make rules for regulating and prescribing the procedure and practice of the Court, but cannot alter the rules of evidence.’ Public policy protects against disclosure any documents which relate to . .
Cited by:
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Health, Litigation Practice
Leading Case
Updated: 02 November 2021; Ref: scu.522382