THE QUESTION OF THE CLAIMANT’S CAPACITY SHOULD NOT HAVE BEEN DEALT WITH AS A PRELIMINARY ISSUE: THE COURT SHOULD APPOINT A LITIGATION FRIEND – THIS DOES NOT PREJUDICE THE DEFENDANT’S POSITION
Here we have a case where a defendant appealed against a decision it agreed with. The judge found that the claimant had capacity and did not require a Litigation Friend. However the defendant’s issue was with the very decision to…
PROVING THINGS 249: APPELLANT FAILS TO PROVE LACK OF CAPACITY: SHORTFALLS WITH THE EXPERT EVIDENCE
In Cannon v Bar Standards Board [2023] EWCA Civ 278 the Court of Appeal held that expert evidence placed before it failed to establish that an appellant lacked capacity. The case provides importance guidance about the nature and quality of…
CAPACITY TO LITIGATE : LITIGATION FRIEND CAN PROPERLY CONTINUE WITH ACTION WHERE CLAIMANT WAS WITHOUT CAPACITY AT BEGINNING OF CASE
I was speaking at the MASS conference yesterday about capacity and litigation. It is always the way of things that an interesting point on an issue comes up the day after a presentation. An issue on capacity to litigate arose…
ISSUING PROCEEDINGS BEFORE LETTERS OF ADMINISTRATION ARE TAKEN OUT: A FATAL ERROR FROM THE OUTSET
In Qunintana -v- Surrey and Sussex Healthcare NHS Trust 28/03/2017 Master Cook upheld the established principle that an action cannot be brought by administrators of an estate before the letters of administration are taken out. Proceedings cannot later be amended…
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