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Mental capacity

A claimant with a serious brain injury can have capacity to settle a legal action. By Clare Marshland and Nicholas Brown

7 March 2003

In September 1980, the claimant suffered a severe brain injury in a road traffic accident. In 1987, his original personal injury action was settled. In 1993, he issued proceedings alleging negligence against his former solicitors claiming the original action had been settled at an undervalue. In 1997, during the course of those proceedings, a medical expert advised that, as a result of the brain injury he had sustained, the claimant had been a patient within the meaning of s 94(2) of the Mental Health Act 1983 (MHA 1983), since the date of the original accident. Thereafter, the claimant sought to re-open the original action on the basis that the 1987 settlement had never been approved by the court. In both actions it was ordered there should be a joint trial of a preliminary issue in relation to whether the claimant had been a patient within the meaning of RSC Ord 80 and/or Pt 21 of the CPR at any time since September 1980. Following a 15-day trial, Wright J gave judgment for the de...

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