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Family Law

The leading authority on all aspects of family law

Court of Protection Practice and Procedure Conference 2016

A comprehensive guide to best practice and current thinking

06 FEB 2013

CAPACITY TO LITIGATE: Dunhill v Burgin[2012] EWCA Civ 397, [2012] COPLR 679

(Court of Appeal, Ward, Lewison LJJ, Sir Mark Potter, 3 April 2012)

The woman suffered severe brain damage as the result of a road traffic accident. She claimed damages but no consideration was given to whether proceedings should be conducted by a litigation friend on her behalf. She settled the claim for £12,500 but her advisors now sought to set that aside on the basis that at the time she was incapable of managing and administering her property and affairs.

It was clear that with proper advice the woman would never have settled her claim at this stage. For the woman to have had capacity to litigate she would have needed to be aware of the small fortune in damages that she was potentially giving up. Had she been recognised as a patient the court would have never approved the settlement. Appeal allowed. 


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