Joanne Dunhill (a Protected Party by Her Litigation Friend Paul Tasker) v Shaun Burgin

JurisdictionEngland & Wales
JudgeTHE HONOURABLE MR JUSTICE SILBER,MR JUSTICE SILBER
Judgment Date07 March 2011
Neutral Citation[2011] EWHC 464 (QB)
CourtQueen's Bench Division
Date07 March 2011
Docket NumberCase No: BY020529

[2011] EWHC 464 (QB)

THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

IN THE MANCHESTER DISTRICT REGISTRY

Before : The Honourable Mr Justice Silber

Case No: BY020529

Between
Joanne Dunhill (a Protected Party By Her Litigation Friend Paul Tasker)
Claimant
and
Shaun Burgin
Defendant

Marc Willems (instructed by Potter Rees Solicitors of Manchester) for the Claimant

James Rowley QC (instructed by Keoghs LLP of Bolton) for the Defendant

Hearing dates: 9 to 11 February 2011

Further written submissions by the claimant served on 18 February 2011

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

THE HONOURABLE MR JUSTICE SILBER MR JUSTICE SILBER

MR JUSTICE SILBER:

I. Introduction

1

Joanne Dunhill ("the claimant"), who is a Protected Party now acting through her Litigation Friend, applies for a declaration that the Consent Order entered on 7 January 2003 ("the consent order") whereby her claim for personal injury damages against Shaun Burgin ("the defendant") arising out of a road traffic accident which occurred on 25 June 1999 was settled, is void because she lacked the capacity to enter into this compromise agreement and the Court did not approve the settlement.

2

This is a hearing of preliminary issues which was ordered by Hickinbottom J on 19 April 2010 and which have now been re-formulated by agreement as follows:-

"1. The Parties agree that the legal test in respect of capacity to litigate is issue-specific and relates to the capacity to conduct the proceedings.

2. In order to decide if the consent order made on 7 January 2003 might be set aside on the grounds of lack of capacity, the fundamental question is 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 considerations to include decisions which might have been required if the litigation had been conducted differently?

3. If 2(a) is correct:

a) The practical issue in this case is agreed to be confined to whether the Claimant had capacity to enter the compromise agreement on 7 January 2003. Is the presumption that the Claimant had capacity rebutted on the evidence?

b) If the answer to 3(a) is in the negative, the compromise is unimpeachable (but go to question 5).

c) If the answer to 3(a) is yes, go to question 5.

4. If 2(b) is correct, the Defendant concedes lack of capacity; and go to question 5.

5. The issue of the application of CPR 21.10(1) to the facts of this case is to be adjourned."

3

The court is no longer concerned with another preliminary issue ordered by Hickinbottom J, which was that if the claimant lacked the capacity to agree the consent order, the court should then decide whether to approve it. It is now conceded by the defendant that no court would now approve the settlement of £12,500 because the defendant's pleaded provisional Counter-Schedule on a full liability basis produces a claim of £793,571 while the claimant's provisional Schedule of Damages on the same basis comes to £2,231,746.

4

In this judgment, I will set out the background to this claim (paragraphs 5 to 14), and the statutory background (paragraphs 15 and 16) before considering the correct approach to the issue of capacity (paragraphs 17 to 50) and then in the light of that answer will consider whether the claimant had the requisite capacity (paragraphs 51 to 97).

II. The Background to the Claim

5

The accident, which gave rise to the claimant's claim, occurred on the A635 Doncaster Road/Roundabout on 25 June 1999 when the claimant, who was a pedestrian crossing the road, was knocked down by a motorcycle ridden by the defendant.

6

The claimant, who was then 38 years of age, sustained a head injury resulting in 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 sustained damage to the olfactory nerve as well as losing her sense of smell. The claimant's head injury has increased substantially the risk of her developing epilepsy.

7

The claimant also suffered post-traumatic amnesia of more than 24 hours as well as evidence of damage to her brain with a fractured skull. According to Dr Bruce Scheepers, who is a Consultant Neuropsychiatrist, the claimant's head injury was diagnosed as being severe and she has undergone a change of personality due to the traumatic brain injury with the result that she is diagnosed as suffering from an organic personality disorder.

8

Prior to the accident, the claimant suffered from anxiety and her organic personality disorder has exacerbated her underlying anxiety.

9

As a result of the accident, the claimant contends that she has an impoverished quality of life, and according to her medical advisors, she is unlikely to make further progress even with active rehabilitation. She requires structured assistance such as sheltered therapeutic employment and on-going case management and support to enable her to function at a reasonable level. The case for the claimant is that she is at substantial risk of severe deterioration in her mental health unless she receives appropriate support and supervision.

10

For her claim against the defendant, the claimant instructed solicitors who had acted for her in matrimonial proceedings and who were W. Brook & Co of Rotherham ("the former solicitors"). They commenced her proceedings against the defendant in the Sheffield County Court on 7 May 2002 alleging that he had negligently knocked down the claimant. The Particulars of Claim and Schedule of Loss state that her losses were:-

"Travelling Expenses

Attending medical examination at Barnsley District General Hospital £5.00 return bus fare

Attending Northern General at Sheffield for treatment 3 x 40 mile round trip.

Petrol charged at 42p per mile £50.40

Travel to Psychiatrist at Darfield bus fare being £192.40

£1.85 for a week for two years

Cost of Care

£4.50 per hour for 10 hours a day for six months £1,170.00

£4.50 per hour for one hour (needs assistance with £460.00

cooking due to lack of sense of smell for two years)

Total Loss £1,885.80

Interest claimed at 8% per annum accident occurring £377.16

on the 25 th June 1999 and it now being February 2002

which is 30 months interest.

Total £2,262.96"

11

A Defence was filed on 18 June 2002 disputing that the defendant had been negligent and claiming that the claimant had been totally at fault or contributorily negligent because she had stepped out from between two stationery cars straight into the path of the defendant, who then had no chance of avoiding the accident. The claimant's case was listed for hearing at Sheffield County Court on the issue of liability on 7 January 2003. On that occasion, the claimant was present together with a representative of her solicitors, Mr Marsh, the counsel who was then acting for her as well as her mental health advocate, Mr Nick Burton, whose role was not to advise her but to ensure that she understood what was said to her and to act as a mouth piece for her, as well as her son's girl friend Carole Rogers. At no time prior to the settlement of the claimant's claim against the defendant did she have a Litigation Friend or was she declared "a patient" within the meaning of that term in the legislation in force at the time which was the Mental Health Act 1983. It was not suggested by anybody that she was at the time of the consent order "a patient" or indeed until many years later that she had then needed a litigation friend.

12

The claim was settled immediately before the case was called on for hearing in the sum of £12,500. I will have to return to explain how it came about that the case was settled (paragraphs 53 to 77 below).

13

On 11 February 2009, the claimant applied to set aside the consent order on the basis that the claimant ought to have been properly classified as a "patient" because she lacked the capacity to conduct proceedings and this is the application which I am now hearing.

14

To complete the picture, I should explain that the claimant has issued proceedings against her former lawyers alleging that they have been negligent in failing to advise the claimant of the full extent of her claim against the defendant. As I have explained, even on the defendant's account, the claimant has a claim for £793,751 on a current valuation against the defendant based on full liability. The schedule as now drawn includes many heads of loss (such as a future need for care) which were not included in the actual claim against the defendant. The claimant's claim against her former solicitors and former counsel awaits the outcome of the present application and I make no comment about it other than to explain that there is no evidence before me that the claimant was asked to make any decision about any head of claim other than those which I have explained in paragraph 10 and the claim for general damages which were set out in the Particulars of Claim.

III. The Statutory Background

15

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 7 January 2003, which was before the Mental Capacity Act 2005 came into force. The provisions of the CPR Part 21 then in force, which are material, provided that:-

"Scope of this Part

21.1 – (1) This Part -

(a) contains special provisions which apply in proceedings involving … patients; …

(2) In this Part –

(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.

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3 cases
  • Joanne Dunhill (by her Litigation Friend Paul Tasker) v W. Brook & Company (A Firm)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 15 Marzo 2018
    ...5 In February 2011, that action came before Silber J who decided that the presumption that she had capacity had not been rebutted: [2011] EWHC 464 (QB). Ms Dunhill then successfully appealed to the Court of Appeal ( [2012] EWCA Civ 397) which remitted the question whether the compromise a......
  • Joanne Dunhill (A Protected Party by her Litigation Friend, Paul Tasker) v Shaun Burgin (No 2)
    • United Kingdom
    • Queen's Bench Division
    • 9 Noviembre 2012
    ...J held that the claimant did have capacity to enter into the compromise agreement embodied in the consent order of 7 th January 2003: [2011] EWHC 464 QB. He therefore dismissed the claim for a declaration: and had that decision stood, the Imperial Loan issue would have been academic. It ce......
  • Dunhill v Burgin
    • United Kingdom
    • Supreme Court
    • 12 Marzo 2014
    ...CPR 21.10. The defendant has not sought retrospective approval of the settlement. 7 Issue (i) was tried by Silber J in February 2011: [2011] EWHC 464 (QB). The parties were agreed that the test of whether a person was a "patient" was whether she had the mental capacity to conduct the procee......
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