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Capacity to Conduct Legal Proceedings

Civil Litigation

When considering whether an individual has sufficient mental capacity to conduct legal proceedings, or instruct lawyers to conduct those proceedings on their behalf, the test is whether the individual has the capacity to conduct the claim or cause of action which they actually have, regardless of whether there is an alternative claim available requiring a lesser degree of capacity.

In the case of Joanne Dunhill (by her litigation friend Paul Tasker) v Shaun Burgin, Mrs Dunhill had sought legal advice in relation to a personal injury claim. Mrs Dunhill was advised by her lawyer to settle the claim, and it was later realised that this settlement was at a gross undervalue given the potential claim available to her.

The Court decided that although Mrs Dunhill had capacity to agree to the settlement, she did not at the time have capacity to pursue the larger, more complex claim which should have been brought had she been better advised by her lawyer. The Court therefore concluded that a litigation friend should have been appointed from the outset. Lawyers therefore need to consider the scope and complexity of all possible claims available to their client when considering their capacity to make decisions and conduct proceedings.

If you would like advice on civil litigation issues please contact us.

Jacqueline Penfold
Jacqueline Penfold
Tina Ripley
Tina Ripley