header-logo header-logo

27 June 2014 / Richard Scorer
Issue: 7612 / Categories: Features , Personal injury
printer mail-detail

Capacity conundrum

The court must protect protected parties, says Richard Scorer

In English law, a contract made by a person lacking capacity is valid unless the other party to the contract knew, or ought to have known, that he lacked capacity, in which case the contract is voidable. But things become more complicated when that contract is an agreement to compromise litigation, particularly litigation relating to the personal injury which caused the lack of capacity in the first place.

Protecting vulnerable claimants

In any piece of litigation—a personal injury claim is the most common example—the Civil Procedure Rules (CPR) dictate that a claimant who lacks capacity should be represented in the proceedings by a litigation friend, and that any settlement should be approved by the court. These provisions of CPR are designed to protect vulnerable claimants who cannot sensibly understand or consent to settlements being reached on their behalf. That need to protect the vulnerable claimant trumps the need for finality in litigation: if a settlement is void because of capacity issues, the case can be re-opened.

So

If you are not a subscriber, subscribe now to read this content
If you are already a subscriber sign in
...or Register for two weeks' free access to subscriber content

MOVERS & SHAKERS

Bell Yard Kysen—Liz Giles

Bell Yard Kysen—Liz Giles

Bell Yard Kysen appoints senior legal PR and ex-government communications adviser, Liz Giles

Clarke Willmott—Lee Edwards

Clarke Willmott—Lee Edwards

Clarke Willmott boosts Southampton commercial property team with addition of partner Lee Edwards

Lime Solicitors—four promotions

Lime Solicitors—four promotions

Lime Solicitors announces four promotions

NEWS
The Attorney General, Ellie Reeves KC MP, and Solicitor General, Andy Slaughter KC MP, marked the 25th anniversary of Pro Bono Week by joining lawyers, charities, students and parliamentarians at events celebrating voluntary legal work
A polished legal defence may owe more to artificial intelligence than legal merit—and creditors risk paying the price in delay and expense
Witness evidence can be compromised by AI before a solicitor sees the draft, leaving safeguards focused on authorship incomplete
Should a conviction stand when a later ruling reveals that the law underpinning it was wrong? The answer exposes a clash between finality and justice
Possession claims are entering a new digital era, with procedural traps awaiting practitioners who assume familiar rules still govern every step
back-to-top-scroll