Joanne Dunhill (a Protected Party by her Litigation Friend Paul Tasker) v Shaun Burgin
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward:,Lord Justice Lewison:,Sir Mark Potter: |
| Judgment Date | 03 April 2012 |
| Neutral Citation | [2012] EWCA Civ 397 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2011/0782 |
| Date | 03 April 2012 |
[2012] EWCA Civ 397
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
MR JUSTICE SILBER
BY020529
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Lewison
and
Sir Mark Potter
Case No: B3/2011/0782
Marc Willems (instructed by Potter Rees Solicitors) for the appellant
James Rowley Qc (instructed by Keoghs LLP) for the respondent
Hearing date: 30th November 2011
The issue in this case
The claimant, Mrs Joanne Dunhill, was the victim of a road traffic accident in which she suffered severe brain damage. No-one seems to have considered at the time whether not she was a patient within the meaning of the Civil Procedure Rules and consequently whether she had to have a litigation friend to conduct proceedings on her behalf. Instead a straightforward claim for a very modest amount of damages for personal injuries was made and her claim compromised at the door of the court in the sum of £12,500. As the proceedings were constituted, there was no need to obtain the approval of the court to that compromise of her claim. Much later those now advising her realised that she is, and contend that at all material times she was, incapable of managing and administering her property and affairs and so she applied to set aside the compromise for want of approval by the court. The court was required to answer preliminary issues, settled after a convoluted process, the nub of the dispute being:
"whether in considering the issue of capacity historically rather than prospectively, should the court:
(a) confine itself to examining the decisions in fact required of the claimant in this action; or
(b) expand its consideration to include decisions which might have been required if the litigation had been conducted differently."
On 7th March 2011 Silber J. held that:
"The court should confine itself fundamentally to examining the decisions in fact required of the claimant in this action. It should not expand its considerations to include decisions which might have been required if the litigation had been conducted differently."
This is Mrs Dunhill's appeal against that ruling.
A little more of the background
This accident occurred on 25th June 1999 when the claimant was walking across the road at a roundabout in Doncaster and was knocked down by a motorcycle driven by the defendant Mr Shaun Burgin. She was then thirty eight years of age. She sustained a severe traumatic brain injury as a result of which she suffered, against a background of pre-existing psychological vulnerability, significant cognitive, emotional and subsequent psychiatric symptoms. She underwent a change of personality. There is a substantially increased risk of her developing epilepsy. She now requires structured assistance such as sheltered therapeutic employment and on-going case management and support to enable her to function at a reasonable level. There is a substantial risk of severe deterioration in her mental health unless she receives appropriate support and supervision.
She brought her claim in the Sheffield County Court on 7th May 2002. The particulars of special damage claimed modest travel expenses and £1885.80 for the cost of care limited to £4.50 per hour for ten hours a day for six months and £4.50 per hour for one hour for two years.
Her case was listed for hearing at the Sheffield County Court on the issue of liability on 7th January 2003. She was represented by counsel and a representative of her solicitors was present. So was her mental health advocate, whose role was not to advise her but to ensure that she understood what was said to her and to act as a mouthpiece for her. She was also supported by her son's girlfriend, but her son, who was to be a witness on her behalf was not present. Due to his non-attendance counsel advised they might have to apply for an adjournment but that the judge might be unwilling to allow it. Instead she entered into negotiations with the defendant and the claim was eventually settled, as I have said, in the sum of £12,500. Were a claim now to be brought on her behalf, her special damages would on her case exceed £2 million, the defendant acknowledging that the claim is worth at least about £800,000.
The legal background
It is common ground that the issue of capacity has to be considered in the light of the law on mental capacity in force on 7th January 2003 which was before the Mental Capacity Act 2005 was enacted. Thus the relevant provisions of CPR Part 21 then in force provided as follows:
" Rule 21.1 Scope of this Part
(1) This Part –
(a) contains special provisions which apply in proceedings involving … patients; …
(2) In this Part –
(a) …
(b) 'patient' means a person who by reason of mental disorder within the meaning of the Mental Health Act 1983 is incapable of managing and administering his property and affairs.
Rule 21.2 Requirement for litigation friend in proceedings by or against children and patients
21.2-(1) a patient must have a litigation friend to conduct proceedings on his behalf.
Rule 21.3 Stage of proceedings at which a litigation friend becomes necessary
(1) …
(2) …
(3) If a party becomes a patient during proceedings, no party may take any step in the proceedings without the permission of the court until the patient has a litigation friend.
(4) Any step taken before a patient has a litigation friend shall be of no effect, unless the court otherwise orders.
…
Rule 21.10 Compromise etc by or on behalf of a child or patient
(a) where a claim is made –
(a) by or on behalf of a … patient; or
(b) against a … patient,
no settlement, compromise or payment and no acceptance of money paid into court shall be valid, so far as it relates to the claim by, on behalf or against the … patient, without the approval of the court."
The facts of our case are indistinguishable from the facts in Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889, [2003] 1 WLR 1511. Silber J. extracted these principles from that decision:
(1) From the judgment of Kennedy L.J.:
"27. What, however, does seem to me to be of some importance is the issue-specific nature of the test; that is to say the requirement to consider the question of capacity in relation to the particular transaction (its nature and complexity) in respect of which the decisions as to capacity fall to be made. It is not difficult to envisage claimants in personal injury actions with capacity to deal with all matters and take all "lay client" decisions related to their actions up to and including a decision whether or not to settle, but lacking capacity to decide (even with advice) how to administer a large award. In such a case I see no justification for the assertion that the claimant is to be regarded as a patient from the commencement of proceedings. Of course, as Boreham J said in White's case [ White v Fell (unreported) 12th November 1987), capacity must be approached in a common sense way, not by reference to each step in the process of litigation, but bearing in mind the basic right of any person to manage his property and affairs for himself, a right with which no lawyer and no court should rush to interfere."
(2) From the judgment of Chadwick L.J.:
"57. English law requires that a person must have the necessary mental capacity if he is to do a legally effective act or make a legally effective decision for himself. …
58. The authorities are unanimous in support of two broad propositions. First, that the mental capacity required by the law is capacity in relation to the transaction which is to be effected. Second, that what is required is the capacity to understand the nature of that transaction when it is explained. …
62. The authorities to which I have referred provide ample support for the proposition that, at common law at least, the test of mental capacity is issue-specific: that, as Kennedy LJ has pointed out, the test has to be applied in relation to the particular transaction (its nature and complexity) in respect of which the question whether a party has capacity falls to be decided. It is difficult to see why, in the absence of some statutory or regulatory provision which compels a contrary conclusion, the same approach should not be adopted in relation to the pursuit or defence of litigation. …
75. For the purposes of Order 80 – and, now, CPR Pt 21 — the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law – whether substantive or procedural – should require the interposition of a next friend or guardian ad litem (or, as such a person is now described in the Civil Procedure Rules, a litigation friend)."
(3) My Lord, Potter L.J., agreed with both judgments.
The next material decision of this Court is Bailey v Warren [2006] EWCA Civ 51. There the essential facts differed from the case before us only in as much as the compromise sought to be set aside was an agreement reached between the solicitors for the parties before the claim had been issued that damages would be reduced by 50% contributory negligence. A claim for damages was then brought...
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