A recent Supreme Court decision in the case of Dunhill v Burgin has raised the possibility of long settled cases being re-opened, in circumstances where it has subsequently been found that the Claimant lacked mental capacity to provide consent to accept a damages award in a case at first instance.
Joanne Dunhill sustained a head injury in an accident in 1999. She settled her claim for damages, at the door of the Court, in 2003 in the sum of £12,500.
She subsequently argued through a second firm of solicitors that at the time she agreed to accept the original settlement, she had lacked mental capacity. Her new lawyers argued that the claim had been worth significantly more than the figure she originally settled at, but rather than pursue a professional negligence claim against the original firm, which potentially could have proved far less favourable to the Claimant, they sought to argue that the original settlement should be reconsidered.
There will now be a fresh hearing to determine the correct level of damages to be awarded.
In spite of some concern that the judgment might open the floodgates to a host of similar claims where Claimants might now argue that their original awards should be reviewed on the basis of a lack of mental capacity at the time of award, the particular circumstances of the case should dictate that any similar cases that follow are limited in number.
Giving judgment in the Supreme Court, Lady Hale concluded that although there remains a general principle in favour of ensuring the finality of litigation, the need for finality might be trumped in the face of the need to protect vulnerable Claimants. Such parties “require and deserve protection, not only from themselves, but also from their legal advisers”.