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Private Client Law

14 OCT 2014

Compromising with protected parties: Dunhill v Burgin in the Supreme Court

Compromising with protected parties: Dunhill v Burgin in the Supreme Court
David Rees, Barrister, 5 Stone Buildings

This article examines the recent decision of the Supreme Court in Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18 (noted at [2014] Eld LJ 144). That case examined the issues that needed to be understood by a person in order to have capacity to compromise legal proceedings on their own behalf. It also restated the need for any compromise of litigation entered into on behalf of a person who lacks capacity to conduct legal proceedings to be approved by the court under Part 21 of the Civil Procedure Rules 1998. The article looks at the implications of the Supreme Court’s decision for parties intending to enter into a compromise of litigation and identifies some of the problems that might arise.

Background
It was mid-summer 1999. An agreement had just been reached to bring NATO’s bombing of Kosovo to an end. In America, the Governor of Texas, one George W Bush, had just announced that he would be seeking the nomination of the Republican Party as their candidate in the following year’s US Presidential Election. Closer to home, ‘Bring it All Back’ by S Club 7 had just reached number one in the charts. However, for lawyers the important topic of the moment was the introduction of the Civil Procedure Rules (CPR) 1998 which had come into force a few weeks earlier, forcing a generation of lawyers brought up on the Rules of the Supreme Court and County Court Rules to get to grips with a new regime.

Doubtless unconcerned by the CPR, on 25 June 1999 Joanne Dunhill stepped out from between two parked cars to cross the A635 dual carriageway in the village of Goldthorpe which is between Doncaster and Barnsley in South Yorkshire. She never made it across. Crossing the first part of the carriageway she was struck and knocked down by a motorbike ridden by Shaun Bergin.
At the time of the accident Ms Dunhill was 38 years old and was suffering from an anxiety disorder. In the accident Ms Dunhill sustained a traumatic brain injury which left her without a sense of taste or smell, some hearing loss, forgetfulness, headaches, personality change, low moods and tearfulness, anxiety, mood swings, occasional suicidal ideation and self-mutilation. It was said that her injuries had exacerbated her underlying anxiety.

The initial proceedings
Ms Dunhill consulted solicitors and on 13 May 2002, shortly before the limitation period ran out, they issued a claim on her behalf in the Barnsley County Court. She claimed general damages for pain, suffering and loss of amenity and special damages of £2,262.92. The total claim was limited to £50,000. Mr Burgin denied liability and in the alternative alleged contributory negligence. Although she had solicitors and counsel acting for her, there was no suggestion that Ms Dunhill might be a ‘patient’ for the purposes of CPR Part 21 and require a litigation friend to conduct the litigation on her behalf.

Doubtless unconcerned by the CPR, on 25 June 1999 Joanne Dunhill stepped out from between two parked cars to cross the A635 dual carriageway in the village of Goldthorpe which is between Doncaster and Barnsley in South Yorkshire. She never made it across. Crossing the first part of the carriageway she was struck and knocked down by a motorbike ridden by Shaun Bergin.

At the time of the accident Ms Dunhill was 38 years old and was suffering from an anxiety disorder. In the accident Ms Dunhill sustained a traumatic brain injury which left her without a sense of taste or smell, some hearing loss, forgetfulness, headaches, personality change, low moods and tearfulness, anxiety, mood swings, occasional suicidal ideation and self-mutilation. It was said that her injuries had exacerbated her underlying anxiety.

The initial proceedings
Ms Dunhill consulted solicitors and on 13 May 2002, shortly before the limitation period ran out, they issued a claim on her behalf in the Barnsley County Court. She claimed general damages for pain, suffering and loss of amenity and special damages of £2,262.92. The total claim was limited to £50,000. Mr Burgin denied liability and in the alternative alleged contributory negligence. Although she had solicitors and counsel acting for her, there was no suggestion that Ms Dunhill might be a ‘patient’ for the purposes of CPR Part 21 and require a litigation friend to conduct the litigation on her behalf.


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(By way of an aside it should be noted that at the relevant time ‘patient’ was defined by the CPR r 21.1 as meaning a person who by reason of mental disorder within the meaning of the Mental Health Act 1983 was incapable of managing and administering his own affairs. Since 1 October 2007 the CPR has referred to a ‘protected party’ and defined capacity by reference to the test contained in the Mental Capacity Act 2005. This article uses the expression ‘patient’ as this was the relevant term for Ms Dunhill in 2003.)

The case was listed for a trial on the issue of liability in Sheffield County Court on 7 January 2003. Present at court with Ms Dunhill were her counsel, a trainee solicitor and a mental health advocate who was there to provide her with support, to ensure that she understood what was said to her and to act as a mouth piece for her in discussions with her advisers. Negotiations took place outside court and eventually a compromise was agreed under which the defendant’s insurers were to pay Ms Dunhill £12,500 together with her costs. Two of Ms Dunhill’s witnesses had failed to turn up at court and this, together with the strength of Mr Burgin’s contributory negligence claim, appear to have influenced the advice that Ms Dunhill received. The contemporaneous notes made by the trainee solicitor demonstrate that Ms Dunhill was unhappy with these proposals, but eventually agreed to the compromise having received full advice. A consent order was drawn up, signed by both counsel and placed before the judge. The order was made, and Ms Dunhill and Mr Burgin left court, presumably in the belief that matters had been concluded.


The full version of this article appears in issue 3 of 2014 of Elder Law Journal. If you subscribe to the journal please click here to read the full article. 


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