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Dunhill v Burgin [2014] UKSC 18

In this case the SC considered whether a consent order ought to be set aside if C lacked capacity at the time it was made.

C, a pedestrian, was knocked down by D, a motorcyclist. C suffered multiple injuries including a severe closed head injury. The case was listed for a trial on liability in January 2003. C, accompanied by Counsel and a trainee solicitor, attended court. One of C’s witnesses to the accident did not arrive and negotiations took place. The claim was compromised for the sum of £12,500 with costs. This was embodied in a consent order, which was signed by both counsel and placed before the judge.

In December 2008, nearly 6 years later, C’s Litigation Friend made an application for a declaration that C did not have capacity at the time of the purported settlement. It followed that the consent order ought to be set aside and directions for trial ought to be given. It was never suggested that D knew or ought to have known of C’s lack of capacity.

The Supreme Court held that the consent order ought to be set aside and the case go for trial, setting out: -

  • The test of capacity to conduct proceedings for the purpose of CPR Part 21 is the capacity to conduct the claim or cause of action which the claimant in fact has, rather than to conduct the claim as formulated by her lawyers. Judged by that test, it was common ground that C did not have the capacity to conduct this claim
  • C lacked the capacity to commence and conduct proceedings. She should have had a litigation friend when the proceedings were begun, as required by CPR 21.2(1);
  • Counsel was acting as C’s agent. The principal’s incapacity terminates a contract of agency, whether or not it is known to the agent. The agent lacks actual authority to make a contract on behalf of the incapacitated principal whether or not the other party to the contract knows of the incapacity.
  • The policy underlying the CPR is clear: children and protected parties require and deserve protection not only from themselves, but also from their legal advisors.
    Philippa Seal

Philippa Seal / 1st Jun 2014


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