![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Queen's Bench Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just Β£5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Dunhill v Burgin [2011] EWHC 464 (QB) (07 March 2011) URL: https://www.bailii.org/ew/cases/EWHC/QB/2011/464.html Cite as: [2011] EWHC 464 (QB) |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
QUEEN'S BENCH DIVISION
IN THE MANCHESTER DISTRICT REGISTRY
B e f o r e :
____________________
JOANNE DUNHILL (a Protected Party by her Litigation Friend PAUL TASKER) |
Claimant |
|
- and |
||
SHAUN BURGIN |
Defendant |
____________________
James Rowley QC (instructed by Keoghs LLP of Bolton) for the Defendant
Hearing dates: 9 to 11 February 2011
Further written submissions by the claimant served on 18 February 2011
____________________
Crown Copyright ©
MR JUSTICE SILBER:
I. Introduction
"1. The Parties agree that the legal test in respect ofcapacity
to litigate is issue-specific and relates to the
capacity
to conduct the proceedings.
2. In order to decide if the consent order made on 7 January 2003 might be set aside on the grounds of lack ofcapacity
, the fundamental question is whether, in considering the issue of
capacity
historically rather than prospectively, should the Court:
(a) Confine itself to examining the decisions in fact required of the claimant in this action; or
(b) Expand its considerations to include decisions which might have been required if the litigation had been conducted differently?
3. If 2(a) is correct:
a) The practical issue in this case is agreed to be confined to whether the Claimant hadcapacity
to enter the compromise agreement on 7 January 2003. Is the presumption that the Claimant had
capacity
rebutted on the evidence?
b) If the answer to 3(a) is in the negative, the compromise is unimpeachable (but go to question 5).
c) If the answer to 3(a) is yes, go to question 5.
4. If 2(b) is correct, the Defendant concedes lack ofcapacity
; and go to question 5.
5. The issue of the application of CPR 21.10(1) to the facts of this case is to be adjourned."
II. The Background to the Claim
"Travelling Expenses
Attending medical examination at Barnsley District General Hospital £5.00 return bus fare
Attending Northern General at Sheffield for treatment 3 x 40 mile round trip.
Petrol charged at 42p per mile £50.40
Travel to Psychiatrist at Darfield bus fare being £192.40
£1.85 for a week for two years
Cost of Care
£4.50 per hour for 10 hours a day for six months £1,170.00
£4.50 per hour for one hour (needs assistance with £460.00
cooking due to lack of sense of smell for two years)
Total Loss £1,885.80
Interest claimed at 8% per annum accident occurring £377.16
on the 25th June 1999 and it now being February 2002
which is 30 months interest.
Total £2,262.96"
III. The Statutory Background
"Scope of this Part
21.1 (1) This Part -
(a) contains special provisions which apply in proceedings involving patients; . . .
(2) In this Part
(b) 'patient' means a person who by reason ofmental
disorder within the meaning of the
Mental
Health Act 1983 is incapable of managing and administering his property and affairs.
Requirement for litigation friend in proceedings by or against children and patients
21.2 - (1) A patient must have a litigation friend to conduct proceedings on his behalf.
Stage of proceedings at which a litigation friend becomes necessary
21.3 -
(3) If a party becomes a patient during proceedings, no party may take any step in the proceedings without the permission of the court until the patient has a litigation friend.
(4) Any step taken before a patient has a litigation friend, shall be of no effect, unless the court otherwise orders."
Who may be a litigation friend without a court order
21.4 -
(3) If nobody has been appointed by the court or, in the case of a patient, authorised under Part VII, a person may act as a litigation friend if he
(a) can fairly and competently conduct proceedings on behalf of the patient;
Compromise etc. by or on behalf of child or patient
21.10 (1) Where a claim is made
(a) by or on behalf of a patient; or
(b) against a patient,
no settlement, compromise or payment and no acceptance of money paid into court shall be valid, so far as it relates to the claim by, on behalf of or against the patient, without the approval of the court.
(2) Where
(a) before proceedings in which a claim is made by or on behalf of, or against a patient (whether alone or with any other person) are begun, an agreement is reached for the settlement of the claim; and
(b) the sole purpose of proceedings on that claim is to obtain the approval of the court to a settlement or compromise of the claim,
the claim must
(i) be made using the procedure set out in Part 8 (alternative procedure for claims); and
(ii) include a request to the court for approval of the settlement or compromise".
IV. The Correct Approach to the Issue of Capacity
(i) The Issue
(ii) The Authorities
"What, however, does seem to me to be of some importance is the issue-specific nature of the test; that is to say the requirement to consider the question ofcapacity
in relation to the particular transaction (its nature and complexity) in respect of which the decisions as to
capacity
fall to be made. It is not difficult to envisage claimants in personal injury actions with
capacity
to deal with all matters and take all "lay client" decisions related to their actions up to and including a decision whether or not to settle, but lacking
capacity
to decide (even with advice) how to administer a large award. In such a case I see no justification for the assertion that the claimant is to be regarded as a patient from the commencement of proceedings. Of course, as Boreham J said in White's case,
capacity
must be approached in a common sense way, not by reference to each step in the process of litigation, but bearing in mind the basic right of any person to manage his property and affairs for himself, a right with which no lawyer and no court should rush to interfere." [27]
(a) "English law requires that a person must have the necessarymental capacity
if he is to do a legally effective act or make a legally effective decision for himself." [57];
(b) "The authorities are unanimous in support of two broad propositions. First, that themental capacity
required by the law is
capacity
in relation to the transaction which is to be effected. Second, that what is required is the
capacity
to understand the nature of that transaction when it is explained." [58];
(c) "The authorities to which I have referred provide ample support for the proposition that, at common law at least, the test ofmental capacity
is issue-specific: that, as Lord Justice Kennedy has pointed out, the test has to be applied in relation to the particular transaction (its nature and complexity) in respect of which the question whether a party has
capacity
falls to be decided. It is difficult to see why, in the absence of some statutory or regulatory provision which compels a contrary conclusion, the same approach should not be adopted in relation to the pursuit or defence of litigation." [62]; and that
(d) "For the purposes of RSC 80 and, now, CPR 21 - the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he hascapacity
to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law whether substantive or procedural should require the interposition of a next friend or guardian ad litem (or, as such a person is now described in the Civil Procedure Rules, a litigation friend)." [75]
"It seems to me that the right approach must be to ask as a matter of common sense whether the individual steps formed part of a larger sequence of events which should be seen as one, or whether they were in fact self-contained steps which were not connected with each other." [123]
"the relevant transaction", that "for the purpose of a compromise made at a time when legal proceedings are in contemplation should be treated in the same way as a compromise made in the course of those proceedings" [124].
"The assessment ofcapacity
to conduct proceedings depends to some extent on the nature of the proceedings in contemplation. I can only indicate some of the matters to be considered in accessing a client's
capacity
. The client would need to understand how the proceedings were to be funded. He would need to know about the chances of not succeeding and about the risk of an adverse order as to costs. He would need to have
capacity
to make the sort of decisions that are likely to arise in litigation.
Capacity
to conduct such proceedings would include the
capacity
to give proper instructions for and to approve the particulars of claim, and to approve a compromise. For a client to have
capacity
to approve a compromise, he would need insight into the compromise, an ability to instruct his solicitors to advise him on it, and an understanding of their advice and an ability to
weigh
their advice. So far as Mr Bailey was concerned, the receipt of damages could have a substantial impact upon him. He would need to know what he was giving up and what would happen if he refused to accept the offer of compromise." [126]
"If, as it seems to me, the relevantcapacity
is
capacity
to conduct proceedings, then the client must be able to understand all aspects of those proceedings and take an informed decision, with the help of such explanation as he is given, which bears upon them. It cannot be judged piecemeal. If he has the ability to understand what is meant by a 50/50 split of liability but lacks the
capacity
to understand the concept of damages which results from that division of liability, then he lacks true
capacity
to conduct the proceedings. To return to my main thesis, all of this makes much more sense (I hesitate to
use
the word commonsense) where one is considering the
capacity
to conduct the proceedings at the moment when they are instituted and thereafter during their continuance and it makes less sense to consider the matter in the run up to the litigation even if litigation is a possible outcome in default of a fully successful settlement of the claim. If, therefore, it is pertinent to ask whether the Claimant was a patient in November, which is not my primary view, then I fear Holland J approached the matter too narrowly and Mr Ullstein makes good his attack on the judgment on that basis." [178]
(iii) Discussion
"Was the deceased on the morning of May 30th capable of understanding the nature of the contract into which he was entering or was hismental
condition such that he was incapable of understanding it?"
Again the focus of the court is solely on the actual transaction which was entered into and not on a different contract which might have been entered into.
"..themental capacity
required by the law in respect of any instrument is relevant to the particular transaction which is being affected by means of the instrument and may be described as a
capacity
to understand the nature of that transaction when it is explained.
"A person lackscapacity
if some impairment or disturbance of medical functioning renders the person unable to make a decision whether to consent or to refuse treatment. That ability to make a decision will occur when
(a) The patient is unable to comprehend and retain the information which is material to the decision, especially as to the likely consequences of having or not having the treatment in question;
(b) The patient is unable touse
the information and
weigh
it in the balance as part of the process of arriving at the decision "
What has to be considered is solely capacity
to consent to the particular treatment concerned and not whether the patient has to consider alternative treatments, which were or might be or have been available; but that is what would have to follow if Mr Willems' interpretation is correct. In the cases where
capacity
is being considered retrospectively, the court would on the basis of his submission, have to consider that a person did not have
capacity
if they had
capacity
to consent to treatment which was undertaken but lacked
capacity
to enter another form of more complicated treatment which neither the patient or his medical advisers had even thought about let alone mentioned.
V. Did the claimant have capacity
to agree to the consent order made on 7 January 2003?
(i) Introduction
"The practical issue in this case is agreed to be confined to whether the claimant hadcapacity
to enter the compromise agreement on 7 January 2003. Is the presumption that the claimant had
capacity
rebutted on the evidence?"
"is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisors and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he hascapacity
to understand that which he needs to understand in order to pursue or defend the claim, I can see no reason why the law whether substantive or procedural should require the interposition of a next friend or guardian ad litem" [75] (cited with approval in Bailey v Warren (supra) [174] per Arden LJ).
a) "There was a lot of coming and going. At some stage, the barrister told me the other side had made an offer of £10,000 to settle the case. My immediate response was 'chickenfeed' and I was really angry that it had even been suggested that was all I was worth" (paragraph 7.21);
b) "The barrister said something about the problems in my case and the fact some of my witnesses hadn't turned up. As far as I was aware, it was only Sam who hadn't turned up. I thought we had an expert's report from the accident investigator and this was quite favourable to us. I though this would be enough for us to win"...paragraph 7.22);
c) "I made my views on the offer very clear but everyone else said that if I didn't take what was on offer I was likely to get nothing. I didn't understand why this was." She then said that as she was so angry, she clawed her face with her fingers so that there was blood trickling down her cheek and "Carole's lovely suit had blood all over it" ...paragraph 7.23);
d) The barrister told her that the settlement offer was £12,500 which included the interim award of £2,500; (paragraph 7.24); and that
e) "I don't remember how we actually came to accept this sum. I think I was expected to have to sign something to say it was all over. However, it seems it did not as it was already a 'done deal' even though I don't remember whether I ever actually said I would take it It was all over with so quickly"(paragraph 7.25).
(ii) The file attendance note of Mr Marsh
"Upon arrival at court at approximately 10.00 a.m. counsel had already had an opportunity to speak with the client. A conference then began where myself, Mr Crossley (counsel), client, Carol Rogers and Mr Nick Burton who was a friend of the client from Barnsley Advocacy all attended.
It quickly became apparent that the main witness for the client, Mr Lee Sam Tasker her son was not at court and was unlikely to attend. Client once again confirmed that he had no fixed abode and led somewhat of a nomadic lifestyle. She did however explain that she did telephone him yesterday advising him that he could go through to court with her by taxi, if he were to get to her house in the morning. Carol Rogers also confirmed that she had spoken to Mr Tasker yesterday and the result of the conversation was that he was going to attend court for his mother.
The advice of counsel was that due to the non-attendance of the main witness she could apply for an adjournment to the judge, but he may be unwilling to allow an adjournment in these circumstances. The alternative was to ask the defendants whether they were intending to pay her some of (sic) money for full and final settlement of her claim without admission of liability. Counsel explained that if this was the case the offer would be drastically reduced from what she may expect if she were to receive full damages and she authorised him to speak to the defendants about this.
When counsel returned he informed the client that there (sic) had put forward an offer of £10,000.00 without admission of liability. The client originally viewed the offer as "chicken feed" but when it was explained to her by counsel that the opposition had two strong witnesses, neither Sam Tasker or George Hall had attended, the client herself was hesitant to take the stand and even if she were to proceed to trial the court's (sic) were likely to only award damages of 25-33% of what she could expect due to her contributory negligence. Counsel explained this in some detail, but originally the client struggled with this, but myself, Mr Burton and Miss Rogers tried to assist her in explanation, which she eventually understood.
The decision by Miss Dunhill although she was not 100% sure about accepting the offer of £12,500 was given without duress and with an opportunity of full and frank information.
It was therefore agreed that a consent order would be drafted explaining that the claimant was to accept the £12,500.00 offer in full and final settlement and that they would pay our costs and that would be the end of the matter. The client seemed to understand the majority of the information without any problems, but whenever a difficult point arose it was explained to her in some detail."
"4 Considerations relevant to weighing of hearsay evidence.
(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.
(2) Regard may be had, in particular, to the following
(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
(c) whether the evidence involves multiple hearsay;
(d) whether any person involved had any motive to conceal or misrepresent matters;
(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight."
a) The attendance note was made contemporaneously;
b) The person making the attendance note had no motive to conceal or misrepresent any matters and indeed he could not have predicted that the attendance note would become of substantial significance in litigation eight years later or why it would or might become so;
c) The attendance note was created as part of his professional duty and as a result of his training to keep an accurate note of dealings with clients and recording advice given to them;
d) There is nothing in the description of the factual events in the attendance note which raises the slightest suspicion in my mind that it could not be accurate;
e) It would not have been reasonable or practicable for Mr Marsh to be called because first he is unlikely to have any recollection of what was said because there would have been no reason for him to have kept details of the discussion leading to the settlement in his mind for eight years; second, it would not have been practicable to call him bearing in mind that his erstwhile (if not present) employers are the subject of a protected writ issued by the claimant for negligence. That fact is likely to have led to submissions that his oral evidence was flawed as being biased and so should be discounted; and that
f) The note is consistent with some other matters. For instance such as the statements that the claimant was struggling and needed repeated explanations seem consistent with the claimant's injuries and the expert medical evidence.
a) The claimant "originally viewed the offer [of £10,000] as chicken feed";
b) Counsel explained that Sam Tasker and George Hall had not turned up while the opposition had "two strong independent witnesses" and so the court was "likely to only award damages of 25-30% of what she could expect due to her contributory negligence";
c) "Counsel explained this in some detail but originally the [claimant] struggled with this, but myself, Mr Burton and Miss Rogers tried to assist her is (sic) explanation, which she eventually understood"; and that
d) "The decision by [the claimant] although she was not 100% about accepting the offer of £12,500 was given without duress and with an opportunity of full and frank information". That does not in itself show that the claimant hadcapacity
.
(iii) Mr Burton's evidence
"had not worked out a way to deal with her and her need to receive information in 'small manageable chunks' When information and advice was given, "I thought he failed to give her sufficient time to take it in" (paragraph 3.8 of Mr Burton's witness statement).
"We couldn't be sure we would be able to prove the accident was the motor cyclists fault and that if she failed to do so, she would get nothing. He was very negative about the case".
"She tried to explain the issues to [the claimant] but the inescapable conclusion was that the legal team believed that [the claimant] should accept the money".
a) The absence of the claimant's main witness was a major source of concern as the claimant said in her own witness statement that she had no recollection of the accident;
b) The advice of counsel was that due to the absence of the claimant's main witness an application to the judge could be made for an adjournment but "he may be unwilling to allow an adjournment in these circumstances" and the alternative was to ask the defendant to settle the case but in that event, the offer would be drastically reduced from what she might expect if she were to receive full damages. The claimant then authorised her legal team to speak to the defendants;
c) When counsel returned he informed the claimant that there had been an offer of £10,000 without admission of liability which the claimant originally viewed as "chicken feed";
d) It was explained to the claimant by her counsel that the defendant had two strong independent witnesses; but neither the claimant's son Sam nor George Hall had attended and the claimant herself was hesitant to go into the witness box. The result was that, even if she were to proceed to trial, the court was only likely to award damages of 25-33% of what she could expect due to her contributory negligence;
e) Counsel explained this in some detail and "originally the client struggled with this but, [Mr Marsh], Mr Burton and Mr Rogers tried to assist her is (sic) explanation which she eventually understood".
f) It is noteworthy that while Mr Burton had been critical of the claimant's solicitors on a previous occasion for not presenting the information in "small manageable chunks" and "giving her sufficient time to take it in" (paragraph 3.8), no such criticism was levelled at the barrister and trainee solicitor at the hearing on 7 January 2003. That suggests that a full explanation was given in an appropriate manner by the lawyers;
g) I would add that for the reasons set out in paragraph 70 above I am quite satisfied that Mr Burton assisted in the explanation. I am fortified in coming to that conclusion by the fact that Mr Burton's actual role was to assist the claimant in understanding issues. In addition Mr Burton accepted that he would do his best to see that the claimant understood matters before she made decisions; and
h) There is no evidence that the claimant became aggressive, cried or walked out as none of these matters are referred to in the attendance note and Mr Burton's evidence does not assist. In addition there is no evidence that the claimant harmed herself as she herself contended because Mr. Marsh would have noted it and Mr. Burton would have recalled it too.
(iv) The Neuro-Psychiatric evidence
a) "The claimant was evidently aware of the fact of and, the significance of, the non-appearance of her son as a witness in relation to her Claim" (30.17). Her statement explained that she had asked her son to be at her house by a certain time so that they could go to court by taxi but, in spite of her son's promise, he did not arrive before it was time to leave home and that made her panic;
b) The claimant's first decision was whether to try to adjourn or negotiate a cash settlement and Professor Wilkinson took the view that the claimant "had thecapacity
to understand the sparse information required and to retain it in her mind long enough to make a decision on this". He pointed out that according to the attendance note, the claimant made a decision on this in line with the advice of her legal team and the record indicates that she authorised her barrister to speak to the defendants about attempting to reach a full and final satisfaction;
c) The claimant then had to decide whether or not to accept the offer of £10,000 without admission of liability and according to Professor Wilkinson "this she evidently decided easily (and I presume, given that this litigation has restarted, realistically). [The claimant] was able touse
or
weigh
information as part of the process of making the decision she needed to make. [The claimant] showed understanding that the offer was low";
d) The claimant's witness statement noted that the barrister had said something about the problems in the case and that some of the witnesses had not turned; up but she was aware that only her son had not turned up;
e) Professor Wilkinson believed that even if the claimant was right about self harm using her fingernails and the appearance of shadows, this did not indicate psychoticmental
disorder and/or lack of
capacity
to make the decision she made to settle on 7 January 2003. He noted that the attendance note did not refer to the claimant's self harm, or in terms, distraction due to shadows. I interject to say that I have found, as I explained in paragraph 72(h) above, that there is no reliable evidence of self harm;
f) According to Mr Burton, the claimant was told that the defendant had witnesses and that she did not; and there was uncertainty about proving the accident was the motor cyclist's fault; and, if she failed to do so, she would get nothing. He observed that the solicitor ran through the facts numerous times but in such a manner that the claimant could have been in no doubt that he thought she should take the money. Mr Burton explained in respect of all the claimant's queries, the legal team's answer to her was always that she might get nothing; and, in the face of this opinion, the claimant agreed to accept the offer because, in Mr Burton's view, she plainly felt she had no alternative;
g) Professor Wilkinson took the view that the claimant began correctly in terms of her decision whether to accept an increased offer of £12,500, from the position it was too low. There then followed persistent advice from two lawyers including a barrister who sought to persuade her to accept the offer. Professor Wilkinson explained "in my experience as a medico-legal expert it is not generally the sign of a lack of understanding for a client to listen to and modify her views when a legal team presents reasoned argument. I cannot infer from [the claimant's] change of mind that she did not understand what she was being told, rather the reverse since she started from the opposite stand point of wanting to reject, and eventually did something she did not want to do. The attendance note itself maintains that everything was explained so that she understood in the end";
h) Professor Wilkinson said that Mr Burton's evidence showed the claimant "understood the advice to the extent that she was 'extremely unhappy' with it and felt that she had no alternative other than to accept. [The claimant] did not make an impulsive decision on the evidence rather a long drawn out and reluctant one. I infer that she understood what she was doing and reached a decision just (I presume again) the wrong one". He adds that many intelligent people are mistakenly persuaded by others to make poor decisions but that has nothing to do with theircapacity
and everything to do with the advice;
i) Professor Wilkinson concluded "indeed I believe it was likely that it was the claimant's very understanding of this obvious point[ namely that the payment of £12,500 would be the end of the matter] which made her so 'extremely unhappy' in accepting the advice to accept £12,500"; and
j) Professor Wilkinson took the view that the claimant "was clearly able to communicate the ultimate decision she made to her legal advisers".
(v). The Neuropsychologist's evidence
"I was not asked to address the issue ofcapacity
in my 2002 report, however, the nature of my assessment would have allowed comment of her
capacity
at the time. Had I been asked, I would have concluded that she would not have been able to
weigh
up, and comprehend the implications of major financial decisions from a cognitive perspective. Further, I would have felt that Ms Dunhill could be unduly influenced by her high levels of anxiety present in pre trial negotiations. Finally, Ms Dunhill's reliability in making decisions in 2002 would have been primarily affected by her severe impairment of executive function which, in my view, this does not allow her to take a balanced approach to understanding the pros and con and to understanding the long-term implications on her care and rehabilitation of accepting a substantially reduced amount of compensation.
Therefore, given my view that Ms Dunhill lackedcapacity
in October 2002 and continues to lack
capacity
at this assessment then I am of the view that it is reasonable to conclude that she lacked
capacity
on the 7th January 2003. It is my view that Ms Dunhill should have been considered a 'patient' under the terms of the
Mental
Health Act 1983 in January 2003 and could not have been asked to have reliably make the decision regarding the reduction in her compensation.
With particular reference to the decision Ms Dunhill had to make in January 2003, whilst superficially this is a simple 'yes' or 'no' decision, my view is that a valid and informed response would have required cognitivecapacity
that Ms Dunhill did not and still does not have. She is unlikely to have the ability to understand the true extent of her need for care/rehabilitation and also comprehend the financial costs of her care. Her ability to calculate, understand and then
weigh
up the finances and translate these to her everyday life is, in my view, extremely limited. Without these cognitive abilities Ms Dunhill cannot make an informed choice, with an understanding of the implications, about accepting a reduced compensation amount."
(vi) Conclusions on the Neuropsychologists' evidence
(vii) Conclusions on Capacity
VI. Conclusions
a) In response to issue 2 (a) and (b), in determining if the consent order made on 7 January 2003 might be set aside on grounds of lack ofcapacity
and in considering the issue of
capacity
historically rather than prospectively, the court should confine itself fundamentally to examining the decisions in fact required of the claimant in this action. It should not expand its considerations to include decisions which might have been required if the litigation had been conducted differently;
b) In response to issue 3 (a), in the light of the fact that the practical issue in this case is agreed to be confined to whether the claimant hadcapacity
to enter the compromise agreement on 7 January 2003, the presumption that the claimant had
capacity to enter that agreement is not rebutted on the evidence; and
c) In response to issue 5, the issue of the application of CPR 21.10(1) to the facts of this case is to be adjourned with liberty to all parties to apply.