Dunhill v Burgin

Mr Justice Bean addressed whether CPR Part 21.10 invalidates an unapproved settlement in a personal injury claim where the claimant’s lack of capacity was unknown when the settlement was reached. Joanne Dunhill suffered a severe head injury after being struck by a motorcycle ridden by Sean Burgin and later sued in the Barnsley County Court. At a January 2003 liability hearing before HHJ Swanson, her counsel agreed a corridor compromise of £12,500, recorded by consent without seeking approval under Part 21. Doubts later arose about Dunhill’s capacity; acting through a litigation friend, she sought to set aside the consent judgment. Silber J initially found she had capacity, but the Court of Appeal (Ward, Lewison LJJ and Sir Mark Potter) declared she lacked capacity. In the High Court, Bean J held that CPR 21.2, 21.3 and 21.10 form a protective scheme: a party who in fact lacks litigation capacity is a 'protected party' and any settlement relating to such a claim is invalid unless approved by the court, even if incapacity was unknown. He set aside the consent judgment and allowed the claim to proceed; he granted a leapfrog certificate for a Supreme Court appeal and ordered costs against the defendant.