Baker Tilly (a firm) v Makar

Baker Tilly (a firm) v Makar

The Master placed undue weight on a single incident of loss of control by Miss Makar and failed to consider her conduct in other proceedings where no concerns about capacity were raised. In the absence of medical evidence and given the totality of circumstances, it was not established on the balance of probabilities that Miss Makar lacked capacity. The stay pending appointment of a litigation friend was therefore unjustified and should be set aside.

Parties
Claimant: Baker Tilly; Defendant: Mira Makar
Jurisdiction
England and Wales
Judgment Date
27 March 2013
Procedural Posture
Appeal / Judgment on Appeal Against Order Staying Assessment of Costs Pending Appointment of Litigation Friend
Outcome
Appeal allowed
Legal Topics
Capacity to Conduct Proceedings, Appointment of Litigation Friend, Assessment of Costs, Civil Procedure Rules Part 21, Mental Capacity Act 2005
Civil Procedure Capacity to Conduct Proceedings Appointment of Litigation Friend Assessment of Costs Civil Procedure Rules Part 21 Mental Capacity Act 2005

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Parties

Baker Tilly

Claimant

Mira Makar

Defendant

Procedural Posture

Appeal / Judgment on Appeal Against Order Staying Assessment of Costs Pending Appointment of Litigation Friend

Legal Issues

  1. 1 Whether the defendant lacked capacity to conduct the assessment proceedings
  2. 2 Whether the assessment should be stayed pending appointment of a litigation friend
  3. 3 Appropriate order as to costs of the appeal

Ratio Decidendi

The Master placed undue weight on a single incident of loss of control by Miss Makar and failed to consider her conduct in other proceedings where no concerns about capacity were raised. In the absence of medical evidence and given the totality of circumstances, it was not established on the balance of probabilities that Miss Makar lacked capacity. The stay pending appointment of a litigation friend was therefore unjustified and should be set aside.

Court Disposition

Appeal allowed

Orders

  • Stay of assessment proceedings set aside
  • Application for interim costs certificate referred to Master Leonard