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…
COST BITES 254: DOES YOUR CLIENT HAVE CAPACITY? AN IMPORTANT POINT WHEN CONSIDERING THE VALIDITY OF THE RETAINER: AN ISSUE CONSIDERED IN THE SCCO TODAY
It is rare for issues of capacity to considered on an assessment of costs. However that is precisely the issue considered in this case. If the defendant established he did not have capacity when he entered into a retainer with…
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…
WHEN DOES A LITIGANT HAVE CAPACITY? AVOIDING CIRCULAR ARGUMENTS: THE NEED FOR LEGAL ADVICE IS NOT A DETERMINING FACTOR
There is an interesting discussion of capacity to litigate in the judgment of Mr Justice Mostyn in Richardson-Ruhan v Ruhan & Ors [2021] EWFC 6. It is also worth remarking on the judge’s comments on how the expert’s evidence in…
APPLICANT FAILS TO SATISFY COURT THAT LITIGANT LACKED CAPACITY: HIGH COURT DECISION
In Greetham v Greetham [2021] EWHC 998 (QB) Mr Justice Soole rejected an application in relation the appointment of a litigation friend. The applicant failed to prove that the litigant lacked capacity. Further the court did not accept that the…
TAKING APPROPRIATE STEPS WHEN A DEFENDANT DOES NOT HAVE CAPACITY: AN IMPORTANT WARNING
A real and profound warning about the dangers of issuing against someone without capacity is given in the judgment of HHJ Hodge QC sitting as a judge of the High Court in Kumar v Hellard [2021] EWHC 181 (Ch). …
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…
COURT CANNOT RE-OPEN "FINAL JUDGMENT": ISSUES RELATING TO DEFENDANT'S CAPACITY: EVESHAM –v- WERRETT CONSIDERED
In the judgment today in Eversham & Pershore Housing Association Ltd -v- Werrett [2015] EWHC 1060 (QB) Mr Justice Nicol held that the court could not re-open a decision because of later evidence in relation to the defendant’s capacity. THE…
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