Claim for professional negligence after woman with brain injury offered low sum

Sara suffered a severe head injury when she was struck by a motorcycle whilst crossing the road.

She instructed a firm of local solicitors who issued proceedings in the County Court.

The motorcyclist’s insurers denied liability so it was agreed there would be a Trial on the issue of liability only. When the Defendant offered £12,500, Sara was advised to accept and she did.

However, Sara was convinced her claim was worth more and, over three years later, she instructed Potter Rees Dolan.

We argued that Sara did not have the mental capacity to conduct the claim and a Litigation Friend should have been appointed to give instructions on her behalf.

We also argued that the Court should not retrospectively approve the settlement because the claim had been grossly undervalued.

When the case came before the High Court, the Judge decided Sara had been capable of making the simple decision as to whether to accept the £12,500 or risk losing her case altogether and receive no compensation at all.

The Court of Appeal, however, agreed our view that the Judge had applied the wrong test for litigation capacity. They should have looked at her capacity to conduct the proceedings as a whole bearing in mind the very complex nature of the claim. The Court of Appeal therefore set aside the original settlement so that the accident claim could be reopened.

The Defendant then asked the Court to consider whether Sara should be bound by the original settlement because it had been made at a time when he had no knowledge that Sara lacked capacity to conduct her claim.

The High Court decided Sara should not be bound by the settlement because any settlement made on behalf of a person who lacks capacity should be approved by the Court, therefore the settlement was invalid.

The Defendant appealed both decisions to the Supreme Court but, happily, the Supreme Court found in Sara’s favour and the accident claim was allowed to proceed.

Since that time, Judgment has been entered for Sara and she will eventually receive considerably more compensation than she was advised to accept by her former solicitors and barrister. She has also brought a case against her former legal team whom she claims were negligent in advising her to accept such a low sum.

Alison Hartley acted on Sara’s behalf and commented:

This has been a very complex case which has produced a landmark decision on the issue of capacity which hopefully will benefit others who might find themselves in a similar position to Sara. The case has taken a long time but I am delighted Sara’s patience will eventually be rewarded by the payment of a sum of money that will better reflect the true value of her claim.

The names and identifying details of the client have been changed to protect the privacy of individuals involved.