Capacity and agreements to settle – Joanne Dunhill (by her litigation friend Paul Tasker) v Shaun Burgin [2012] EWCA Civ 397
The Claimant had suffered severe brain damage after being knocked down by the Defendant. The Claimant (it appears she was unrepresented at the time) settled her claim for £12,500. The Claimant’s advisors applied to set aside the settlement on the grounds that she had lacked the capacity to enter into the settlement. The Court held in the first instance that the settlement should not be set aside as the evidence showed that the Claimant understood the terms and implications of the settlement and therefore had capacity.
On appeal the Court of Appeal held that the correct question was not whether the Claimant had capacity to enter into the settlement but whether the Claimant had capacity to litigate the proceedings as a whole. The Court of Appeal held that given the Claimant’s limited understanding of the implications of the size of the claim, a litigation friend should have been appointed and had this been done the settlement would never have been approved by the Court. The settlement was set aside.
This case is useful confirmation that prior to entering into a settlement with a Claimant whose capacity potentially is in issue, the Defendant should consider the risk that any settlement may be set aside.
Limitation periods - John Charles Roberts v Commissioner of Police of the Metropolis [2012] EWCA Civ 799
Following his arrest, the Claimant made a complaint against the police that their actions during the arrest constituted assault. The Claimant brought a claim for personal injury after the 3 year limitation period had expired. The Judge in the first instance refused to disapply the limitation period and allow the claim to proceed on the basis that, due to the seriousness of the allegations, to do so would prejudice the Defendant’s ability to have a fair trial.
On appeal, the Court upheld the Claimant’s application to disapply the limitation period. The trial Judge had assumed that the Defendant would suffer unfair prejudice but this was not supported by the evidence. The trial Judge’s finding that a fair trial would not be possible was not justified.
This case demonstrates that if a Defendant is to argue prejudice when disapplication of the limitation period is being requested by a Claimant, a Defendant must show actual evidence that a fair trial would not be possible.
Findings of fact – Audrey Burnett v Lynch [2012] EWCA Civ 347
The Claimant’s case was that she had a consultation with the Defendant GP during which the Defendant examined a breast lump and diagnosed it as a blocked milk duct. The Claimant was later diagnosed with breast cancer. The Defendant GP denied that the consultation had taken place or that the diagnosis had been made. The Judge was therefore required to make a finding of fact as to whether the consultation and diagnosis had taken place. The Judge found for the Claimant.
The Defendant GP appealed the decision on the basis that the Judge had made findings of fact which were inconsistent and failed to provide reasons for rejecting the Defendant GP’s evidence.
The Court held that the Judge’s findings were not inconsistent. The Judge was only required to set out his line of reasoning for his findings of fact based on the evidence (which he had done) and was under no obligation to set out the reasons for rejecting the Defendant GP’s case.
The case indicates that where facts are in dispute between the parties, a Judge is only required to show that a finding of fact has been made on a reasoned basis. The party whose evidence is not preferred is not entitled to appeal on the basis that they have not been provided with reasons why their evidence has been rejected.
Claimant’s request for adjournment of trial due to solicitor ceasing to act – Bowden v Homerton University Hospital NHS Foundation Trust [2012] EWCA Civ 245
The Defendant had admitted liability for clinical negligence and a trial on quantum was due to take place. Three weeks prior to trial the relationship between the Claimant and his solicitor broke down and the solicitor ceased to act. Acting as a litigant in person, the Claimant made an application to adjourn the trial to allow him to obtain new representation. The Judge refused the application.
On appeal, the Court held that the Judge had incorrectly exercised his discretion in refusing the adjournment. The key factor was that the Claimant’s solicitors had ceased to act in circumstances which were not the Claimant’s fault. The Court of Appeal also found that not enough weight had been given to the extremely difficult position the Claimant would have been placed in if he had sought to represent himself. However, it should be noted that the Claimant still had to bear the costs wasted by the adjournment, to reflect the development being in no way the fault of the Defendant either.
This case indicates that the Court will be sympathetic to a Claimant whose solicitors have ceased to act shortly before trial where this was not the fault of the Claimant but the circumstances of each case will be reviewed carefully.