Win for Rob Weir QC in capacity strike out application in Court of Appeal

In Evans v Betesh Partnership and others [2021] EWCA Civ 1194, the claimant had brought a professional negligence claim against her former solicitors and barrister on the basis that they had carelessly under-settled her personal injury claim. The claimant has sustained a traumatic brain injury and, as part of her professional negligence claim, contended that the defendants should have investigated whether she had lacked capacity to litigate and ensured that she had been seen by a neuropsychologist. Had these steps been taken, she would not have settled for £100,000 and the neuropsychologist would have advised that she had a serious brain injury and, amongst other things, that she had lacked capacity to litigate. Latching onto this, the defendants sought to strike out her claim on the basis that she had sustained no loss; after all, on her own case, she had lacked capacity to litigate when settling for £100,000 so that the settlement was not binding and she could still pursue the underlying defendant.

The court dismissed the strike out at first instance but the defendants’ appeal was allowed by Marcus Smith J.

Overturning the decision of the High Court, the Master of the Rolls, giving the only judgment in the Court of Appeal, held that the claimant had a valid claim for loss on the basis her claim was under-settled aside from the issue of capacity to litigate. She was entitled to plead, in effect, that she did not know whether she lacked capacity to litigate at the time of the settlement. Further, the claimant had sustained a loss, even if she did lack capacity to litigate at the time of settlement: she had lost the opportunity to recover more damages at that time and instead was party to a settlement that may be difficult and costly to re-open.

Accordingly, the claimant’s claim was permitted to proceed. At the invitation of the Court of Appeal, the defendants also provided an indemnity to the claimant to fund her application to re-open the underlying settlement.

Rob Weir QC acted for the successful claimant, instructed by Gareth Williams and Kevin O’Brien of Hugh James solicitors.

To read the full judgment, please click here. 

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