Loss of capacity does not automatically terminate solicitor’s retainer

18 February 2014 by

Anoxic-Brain-InjuriesBlankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust, Phillips J with assessors, 5 February 2014 – read judgment

Upholding the rights of individuals who lack the mental capacity to conduct proceedings can be a minefield for the unwary or even, as shown by this case, the wary. The point at issue before the court was whether, where a party loses mental capacity in the course of proceedings, such loss of capacity has the automatic and immediate effect of terminating their solicitor’s retainer.

The determination of the point was of particular importance in this case where Ms Blankley’s solicitors had been acting under a CFA entered into before the changes brought about on 1 April 2013 by reason of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. If the CFA was found to have been terminated by Ms Blankley’s supervening incapacity, then under the new regime there would be no means of replicating the terms of the CFA. On one view therefore this was a case about how much the Claimant’s solicitors would get paid. However, looked at more widely, it raised the question of the extent to which a court-appointed deputy merely steps into the shoes of a party who loses capacity in the course of litigation and/or may step out of those shoes if and when capacity is regained.

In 1999 the claimant suffered anoxic brain damage following cardio-respiratory arrest during surgery at the defendant’s hospital. In 2002 she brought a claim with the benefit of legal aid, at that time acting through her father as litigation friend. A compromise was reached that she be paid 95% of damages and judgment was entered to that effect. By May 2005 the claimant had regained mental capacity and an order was made that she carry on the (quantum only) proceedings without a litigation friend. Her legal aid certificate was discharged and the next day she entered into a CFA with her solicitors. In February 2007 further assessments of the claimant by psychiatrists determined that she no longer had mental capacity to conduct her own affairs and could not provide instructions in relation to her ongoing claim. An application was made to the Court of Protection for the appointment of a professional receiver (since 1 October 2007 deemed to be the claimant’s deputy), which was granted. Settlement was eventually reached in the sum of £2.6m plus costs. In response to the Claimant’s bill of costs the Defendant raised the issue of the recoverability of costs for work done after the appointment of the receiver/deputy. The costs in issue were about £185,000. In short, the costs judge at first instance disallowed those costs on the basis that there was no valid retainer for that work once the Claimant lacked the mental capacity to conduct the litigation.

On appeal to Phillips J, the opposite conclusion was reached. The court reviewed the key authorities on the frustration of contract (in particular Bingham LJ’s judgment in The Super Servant Two [1990] 1 Lloyd’s Rep 1). Suffice it to say that the court considered that the supervening incapacity of a client was not an event which frustrated the contract, leading automatically to its termination. The decision of the Senior Costs Judge in Findley v Barrington Jones [2009] EWHC 90130 (costs) that where a claimant lost capacity so that he was no longer able to give instructions, the contract of retainer was at that point frustrated, must be regarded as at best doubtful. Phillips J indicates at paragraph 44 of his judgment that he regarded Findley as wrongly decided by reason of not having considered the principles governing the frustration of contracts.

Standing back from the costs context of this case, the decision of Phillips J is plainly right. The court should not readily embrace an interpretation of the law which gives rise to a situation where the parties and lawyers in litigation involving vulnerable clients are left in doubt as to the validity of steps taken in that litigation. Where at all possible, litigation should be conducted seamlessly and efficiently, without satellite disputes being generated as to whether at a particular point in time a client (whose mental state may fluctuate) fell the wrong side of capacity with the result that all bets are off. Phillips J’s judgment restores common sense to the law in this area.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Read more:

1 comment;


  1. Rosemary Cantwell says:

    20 February 2014

    Dear Mr Mumford

    Thank you very much for your illuminating article and one which I would like to pose a specific question.

    In 2012 I raised a Freedom of Information Request with 3 separate bodies – the Bar Council, the Law Society and the Law Commission – wherein I requested why is it that a patient cannot choose their own solicitor?

    I believe that this is cardinal to due process and procedure.

    Yet nobody could or would state why not.

    Do you have any answers please?

    Thank you very much.

    Yours sincerely,

    Rosemary Cantwell

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: