Doubts about Capacity – to approve or not to approve?

The brief judgment in CTQ published today provides a useful reminder of the principles involved in seeking ‘belt and braces’ settlement approval in PI/Clin Neg cases when there are doubts about a claimant’s capacity (see paragraphs 6 and 11).

Notwithstanding the fact that the Claimant was not a protected party, there had been no formal finding of a lack of capacity and, indeed, conflicting evidence on the issue (paragraphs 14-18), the Judge agreed with the parties that the low threshold of “a potential concern about the claimant’s capacity” was met in order for the Court to invoke its inherent jurisdiction (paragraphs 19-24).

A helpful review of the authorities (Coles v Perfect [2013] and Grimshaw v Hudson [2021]) established that the evidence significantly exceeded the “low bar” of a “sufficient question-mark about capacity” to adopt that course in order to achieve the Coles objectives of a “valid, final and binding settlement” and avoiding a trial to determine capacity, all in accordance with the Court’s overarching supervisory jurisdiction to protect the most vulnerable (paragraphs 23-24).

In addition, the concluding and heartfelt comments of the Judge directed to the Claimant and her family (paragraphs 39-45) provide a refreshing and welcome model of how judges going the ‘extra mile’ can make an enormous difference in this type of case.

Read the full document here…