Mental Capacity Case

Penn v Revill

High Court (QBD) (Dingemans J)


In this case, Dingemans J was asked to consider whether the provisions of CPR 21.10 are incompatible with the rights protected by article 14 of the European Convention on Human Rights when read with either article 6 or article 1 of the first protocol of the ECHR.  CPR 21.10 requires that a compromise in civil proceedings with a protected party (i.e. a person lacking the capacity to conduct the proceedings) is not binding unless and until it is approved by the Court. This means that either the protected party or the other party to the compromise may withdraw from the compromise at any time before its approval.

The issue arose in the context of a situation in which the Defendant to a personal injury claim sought to resile from a compromise agreement reached with a protected party Claimant before it had been approved by the court (because of the impact of the reduction in the change in discount rate).   It was common ground that, absent the impact of the ECHR, the Defendant would be entitled to do so.  The question was whether the ECHR dictated a different approach.

The Claimant contended that the proper approach dictated by the ECHR and, indeed, the CRPD, was that set down in the family law proceedings:

  1. Mr Weitzman [for the Claimant] referred to the approach which had been taken in Family law proceedings to compromises in Smallman v Smallman [1972] Fam 25. In that case the words "subject to the approval of the Court" did not prevent a binding agreement being made or entitle one party to resile from its terms before the court had been asked to approve it. The clause simply suspended carrying out the terms of the agreement until it had been approved. In Sharland v Sharland [2015] UKSC 60; [2016] AC 871 at paragraphs 27 and 28, Baroness Hale commented on differences between compromises in family proceedings and civil proceedings. Mr Weitzman's essential point was that the CPR could have adopted the approach to "the approval of the Court" in family law proceedings. Mr Weitzman submitted that such an approach would have been consistent with the United Nations Convention on the Rights of Persons with Disabilities, would have involved less interference with Mr Revill's ECHR rights, and would have been a proportionate approach to the issue of protected parties. Such an approach would have meant that Mr Damiani could not have withdrawn from the compromise unless the Court did not approve the compromise. Mr Grime [for the Defendant] submitted that the approach taken by the rule making committee to this provision of the CPR was a proper approach, well within the discretionary area of judgment for the rule-making committee.
Dingemans J held that:
  1. […] the approach taken by CPR 21.10 to compromises and court approval was a proportionate means of achieving the legitimate aim of ensuring the protection of protected parties from: other parties; from themselves; and from legal representatives. This is because, as was common ground, the objects set out in paragraph 21 above required the implementation of a scheme which required court approval of a compromise made by a protected party before that compromise would bind the protected party. This was because the protected party required protection from inadequate compromises, other parties required a means of obtaining a valid compromise, and consequential matters of distribution of the damages and costs needed to be resolved. This means that, as was common ground, CPR 21.10 pursued a legitimate aim.
  1. Although it is right that the CPR could have been rewritten so that the approach in family law cases was adopted, in my judgment the approach taken by the CPR was proportionate. This was for two main reasons. First the decision whether to continue with the "civil cases" approach set out in CPR21.10 or the "family proceedings" approach was within the discretionary area of judgment for the rule-making committee. There are factors in favour of the family proceedings approach. In this case it would have meant that Mr Damiani would have been held to the compromise, assuming that the court approved the compromise. However there are factors in favour of the approach taken by CPR 21.10. These include the facts that: (1) the compromise rule now set out in CPR 21.10 is long established so that all practitioners know where they stand, meaning that everyone can enter into negotiations to attempt to compromise the action knowing the legal position; and (2) permitting all parties, including the protected party, to withdraw from a compromise before it had been approved maintained a fair balance between protected parties and the other party who might want to withdraw. The family proceedings approach requires permission from the court to withdraw from a compromise, and such permission might not be provided. This could create uncertainty with all the attendant worry and cost. It might also be undesirable, for example legal representatives acting in a case where a protected party had developed groundless fears about the effect of a compromise (which compromise would affect the rest of that protected party's life) and which groundless fears would never have been sufficient to justify a court refusing to approve the compromise, might withdraw from the compromise. This would enable the protected party to be reassured, providing as much autonomy as possible to the protected party consistent with the UN Convention, before a further compromise was made. That further compromise would either meet the protected party's concern or at least provide as much comfort as possible to the protected party. It was for the rule making committee to decide which approach between the civil damages and family proceedings approach to pursue. The approach taken by CPR 21.10 was well within the discretionary area of judgment accorded to the rule making body to make the relevant procedural arrangements to secure the good administration of justice and to protect the relevant rights engaged.
  1. Secondly CPR 21.10 formed part of a series of rules which, among other matters, included the duty on the court to provide active case management. […]. The powers of active case management permit the court to ensure that cases involving protected and unprotected parties are managed in a proportionate and efficient manner, thereby securing the good administration of justice and protecting the relevant rights.


Although the attempt by the Claimant to maintain the benefit of the compromise agreement in this case was ingenious, it is hardly surprising that Dingemans J saw fit to maintain the conventional approach to CPR 21.10, as to do otherwise would have to have been to wreak havoc in such cases.  A really rigorous approach to interpreting Article 13 CRPD (the right of access to justice, making one of its very rare outings in the English courts) would have involved a far more root and branch challenge to the very concept of 'protected party' (see further in this regard the article by Alex, Neil and Peter Bartlett here).