In the administration of his estate the widow of the deceased took out a summons asking for a declaration that a large amount of personal property was held by the deceased as trustee for her and so did not fall into his estate. A compromise was suggested dividing the chattels between the widow and the estate. Counsel for infant beneficiaries refused to assent, the guardian being opposed to the compromise.
Held: A court cannot force a litigation friend to enter into a compromise against his wishes.
Jessel MR said: ‘This is not approving of a compromise, but compelling one. What jurisdiction has the court to do so? . . In my opinion the course which has been taken in this case is quite unprecedented. The court can approve of a compromise on behalf of infants, but it cannot force one upon them against the opinion of their advisers. The practice . . has been to require not only that the compromise should be assented to by the next friend or guardian of the infant, but that his solicitor should make an affidavit that he believes the compromise to be beneficial to the infant, and that his counsel should give an opinion that he considers it to be so . . This is the first time that I have known a compromise enforced upon infants, against the opinion of their guardians or next friend and of their legal advisers, and I am of the opinion that the orders cannot stand.’
Judges:
Jessel MR, James and Cotton LJJ
Citations:
(1880) 16 Ch D 41
Jurisdiction:
England and Wales
Cited by:
Cited – Bailey v Warre CA 7-Feb-2006
The claimant had been severely injured in a road traffic accident. His claim was compromised and embodied in a court order, but later a question was raised as to whether he had had mental capacity at the time to make the compromise he had.
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Children
Updated: 07 July 2022; Ref: scu.238880
