Richard and Vikram acted for the Claimant in the Defendant’s appeal against the decision of Phillips J (sitting with assessors) in Blankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust  1 WLR 2683, which held that a CFA that the Claimant had made in 2005, at a time when her capacity had fluctuated in the past and she was a person known to have fluctuating capacity, was not frustrated when she lost capacity in 2007.
The Defendant contended that the CFA could not be continued by the Claimant’s Receiver (who, in 2007, automatically became her Deputy) because the CFA required personal performance by the Claimant, and it was incapable of being performed by her Receiver or Deputy instead. The Claimant argued that (1) the applicable law is stated in the speeches of Lord Radcliffe and Lord Reid in Davis Contractors Ltd v Fareham Urban District Council  AC 696 and the judgment of Bingham LJ in The Super Servant Two  1 Lloyd’s Rep 1 (2) to hold that the CFA was frustrated by the Claimant’s supervening incapacity would not accord with those cases (3) it would be extraordinary if her solicitors could invoke the doctrine of frustration and claim to be discharged from any further obligation to perform the CFA if the Claimant lost capacity, when they had agreed to represent her on the terms of the CFA in her claim against the Defendant for compensation for being caused that very incapacity, and the Defendant (a stranger to that contract) could be in no better position, and (4) the court should only find the CFA frustrated if compelled to do so by precedent or legal policy, yet precedent does not require such a result, and legal policy requires the contrary result.
The Claimant also argued that the decision below should be upheld on the alternative grounds that either there was a new retainer on CFA terms with the Receiver/Deputy or the services provided by the Claimant’s solicitors were necessary services within s7 Mental Capacity Act 2005. The Court of Appeal announced at the conclusion of argument on the Defendant’s appeal that the appeal would be dismissed for reasons to be given later, and so did not have to consider those alternative grounds. In Dunhill v Burgin  1 WLR 933, Baroness Hale, speaking for the Supreme Court, stated that the authorities concerning incapacity and agency are in a state of some confusion. The reserved judgment of the Court of Appeal is likely to help to clear up that confusion, at least in the area of solicitors’ retainers.