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Family Law

The leading authority on all aspects of family law

09 APR 2013

CAPACITY: Dunhill (By Her Litigation Friend) v Burgin (No 2) [2012] EWHC 3163 (QB), [2013] COPLR 56

(Queen's Bench Division, Bean J, 9 November 2012)

The woman suffered severe brain damage in a road traffic accident and brought a claim for compensation. Her claim was settled for £12,500, however, no consideration was given to whether she was a protected party for the purposes of the Civil Procedure Rules 1998 and, therefore, was in need of a litigation friend and the court's approval to settle the claim. The woman sought to set aside the compromise, by her litigation friend, and it was now estimated that her claim was in fact worth somewhere between £800,000 and £2m.

As a preliminary issue it was found that the woman lacked capacity to conduct proceedings at the time of the settlement and the court was now asked to consider whether the court's approval was needed to compromise a claim by a protected party was necessary pursuant to CPR 21.10.

The court found that the compromise was invalid. When a claim was issued in the civil courts, the CPR were, so far as relevant, impliedly incorporated into any agreement the parties reached to settle the dispute, especially if the settlement was embodied in a judgment of the court; and the rules thus incorporated took precedence over the general law of contract. Even though a person was not declared a protected person officially and was not acting by a litigation friend, a person who lacked capacity was nevertheless a protected party for the purposes of CPR 21.10.

 

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