Dunhill v Burgin [2011] EWHC 464 (QB) (07 March 2011)

Dunhill v Burgin [2011] EWHC 464 (QB) (07 March 2011)

When assessing capacity retrospectively for the purpose of setting aside a consent order, the court must confine its inquiry to the actual decisions required of the claimant in the litigation as conducted, not to hypothetical decisions that might have arisen if the litigation had been conducted differently. On the...

Source-derived case information.

Citation
[2011] EWHC 464 (QB)
Parties
Claimant: Joanne Dunhill; Litigation Friend for Claimant: Paul Tasker; Defendant: Shaun Burgin
Jurisdiction
England and Wales
Judgment Date
07 March 2011
Procedural Posture
Personal Injury Road Traffic Accident / Preliminary Issues Hearing on Application to Set Aside Consent Order
Outcome
Application dismissed
Legal Topics
Capacity to Litigate, Setting Aside Consent Orders, Court Approval of Settlements, Protected Parties, Retrospective Assessment of Capacity
Civil Procedure Mental Capacity Law Personal Injury Capacity to Litigate Setting Aside Consent Orders Court Approval of Settlements Protected Parties Retrospective Assessment of Capacity

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Summary, issues, holding and outcome

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Parties

Joanne Dunhill

Claimant

Paul Tasker

Litigation Friend for Claimant

Shaun Burgin

Defendant

Procedural Posture

Personal Injury Road Traffic Accident / Preliminary Issues Hearing on Application to Set Aside Consent Order

Legal Issues

  1. 1 Whether the claimant lacked capacity to enter into a compromise agreement on 7 January 2003
  2. 2 Whether the consent order should be set aside for lack of capacity
  3. 3 Whether the court's assessment of capacity should be confined to decisions actually required or include hypothetical decisions

Ratio Decidendi

When assessing capacity retrospectively for the purpose of setting aside a consent order, the court must confine its inquiry to the actual decisions required of the claimant in the litigation as conducted, not to hypothetical decisions that might have arisen if the litigation had been conducted differently. On the evidence, the presumption of capacity was not rebutted; the claimant understood, with appropriate explanation and assistance, the nature and effect of the compromise agreement entered into on 7 January 2003.

Court Disposition

Application dismissed

Orders

  • The application to set aside the consent order dated 7 January 2003 is dismissed.
  • The issue of the application of CPR 21.10(1) is adjourned.