header-logo header-logo

27 June 2014 / Richard Scorer
Issue: 7612 / Categories: Features , Personal injury
printer mail-detail

Capacity conundrum

The court must protect protected parties, says Richard Scorer

In English law, a contract made by a person lacking capacity is valid unless the other party to the contract knew, or ought to have known, that he lacked capacity, in which case the contract is voidable. But things become more complicated when that contract is an agreement to compromise litigation, particularly litigation relating to the personal injury which caused the lack of capacity in the first place.

Protecting vulnerable claimants

In any piece of litigation—a personal injury claim is the most common example—the Civil Procedure Rules (CPR) dictate that a claimant who lacks capacity should be represented in the proceedings by a litigation friend, and that any settlement should be approved by the court. These provisions of CPR are designed to protect vulnerable claimants who cannot sensibly understand or consent to settlements being reached on their behalf. That need to protect the vulnerable claimant trumps the need for finality in litigation: if a settlement is void because of capacity issues, the case can be re-opened.

So far, so simple. But the Mental Capacity Act 2005

If you are not a subscriber, subscribe now to read this content
If you are already a subscriber sign in
...or Register for two weeks' free access to subscriber content

MOVERS & SHAKERS

Jurit LLP—Caroline Williams

Jurit LLP—Caroline Williams

Private wealth and tax team welcomes cross-border specialist as consultant

Freeths—Michelle Kirkland Elias

Freeths—Michelle Kirkland Elias

International hospitality and leisure specialist joins corporate team as partner

Flint Bishop—Deborah Niven

Flint Bishop—Deborah Niven

Firm appoints head of intellectual property to drive northern growth

NEWS
Talk of a reserved ‘Welsh seat’ on the Supreme Court is misplaced. In NLJ this week, Professor Graham Zellick KC explains that the Constitutional Reform Act treats ‘England and Wales’ as one jurisdiction, with no statutory Welsh slot
The government’s plan to curb jury trials has sparked ‘jury furore’. Writing in NLJ this week, David Locke, partner at Hill Dickinson, says the rationale is ‘grossly inadequate’
A year after the $1.5bn Bybit heist, crypto fraud is booming—but so is recovery. Writing in NLJ this week, Neil Holloway, founder and CEO of M2 Recovery, warns that scams hit at least $14bn in 2025, fuelled by ‘pig butchering’ cons and AI deepfakes
After Woodcock confirmed no general duty to warn, debate turns to the criminal law. Writing in NLJ this week, Charles Davey of The Barrister Group urges revival of misprision or a modern equivalent
Family courts are tightening control of expert evidence. Writing in NLJ this week, Dr Chris Pamplin says there is ‘no automatic right’ to call experts; attendance must be ‘necessary in the interests of justice’ under FPR Pt 25
back-to-top-scroll