Dunhill v Burgin

Judge: Silber J.

Citation: [2011] EWHC 464 (QB)

Summary: This case concerned an application by the Claimant to have a compromise agreement into which she had entered declared void due to her having lacked litigation capacity at the time it was agreed. The Claimant had suffered a brain injury in a car accident and had instructed solicitors to bring a claim for personal injury. The claim was settled for £12,500 on the first day of trial, but it had subsequently transpired that if properly pleaded, the claim would have been worth at least £790,000, and possibly as much as several million pounds.

The court held that the Claimant had not lacked capacity at the time the consent order was agreed, and had been given a sufficiently clear explanation of the terms of the order, which she had understood. In reaching this conclusion, the court first had to grapple with the question whether the Claimant’s capacity to agree to the consent order was the material issue, or whether it should consider her capacity to deal with the litigation had it been conducted effectively. It may have been that while the Claimant had litigation capacity in respect of a relatively low-value claim (as reflected by the consent order), she did not have capacity in respect of a very high-value claim. The court determined however that this was not relevant. It was required to consider the decision that had actually been taken by the Claimant, not hypothetical possibilities and counterfactuals.

Comment: It is likely to be rare that a court has to assess litigation capacity retrospectively, but this case provides a clear answer to the approach that must be adopted in such circumstances. It also reinforces the view that in assessing litigation capacity, one must look at the actual decisions that are likely to be required of the prospective litigant. As the court noted, the Claimant will no doubt pursue her original solicitors for the lost chance to secure a substantial sum in damages as a result of her accident, having failed to persuade the court that a broader approach to capacity should be taken.

CategoryMental capacity - Litigation Date


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