Blankley v Central Manchester and Manchester Children's University Hospitals NHS Trust [2014] EWHC 168 (QB), [2014] MHLO 142

"These costs appeals raise the question of whether, where a party loses mental capacity in the course of proceedings, such loss of capacity has the automatic and immediate effect of terminating their solicitor's retainer. The question is currently of particular importance for solicitors conducting personal injury claims pursuant to conditional fee agreements entered into before 1 April 2013, in respect of which success fees continue to recoverable from defendants ... If such an agreement is found to have terminated by reason of the supervening incapacity of the claimant ... it would not now be possible to replicate the effect of the original contractual arrangements between solicitor and client given that success fees are not generally recoverable in respect of agreement made on or after 1 April 2013 ... No matter how short the period of incapacity ... nor how quickly a deputy was appointed by the Court of Protection in respect of the claimant, the original CFA would be lost and could not, in real terms, be replaced. ... For the reasons set out below, I have reached the ... conclusion ... that the intervening incapacity of a party does not frustrate or otherwise terminate a solicitor's retainer. Whilst such incapacity does have the effect of removing the authority of the solicitor to act on behalf of the party lacking capacity for the duration of that incapacity, such authority can be restored when a deputy is appointed and provides instructions to the solicitors in that capacity, or otherwise if and when the claimant regains capacity. There is no reason, as a matter of authority or legal principle, why an inability to instruct solicitors in the intervening period (which may be quite short) should be taken to have the effect of immediately ending a solicitor's retainer."

Related judgments

Blankley v Central Manchester and Manchester Children's University Hospitals NHS Trust [2015] EWCA Civ 18, [2015] MHLO 7

ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.  

SOLICITOR — Costs — Conditional fee agreement — Mental incapacity — Whether claimant’s supervening mental incapacity automatically terminating solicitor’s retainer

Blankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust

[2014] EWHC 168 (QB)B; [2014] WLR (D) 141

QBD: Phillips J, sitting with assessors: 5 February 2014

The termination of a solicitor’s actual authority by reason of a client’s supervening mental incapacity did not, it itself, automatically frustrate the underlying contract of retainer.

Phillips J, sitting in the Queen’s Bench Division, so held in allowing an appeal by the claimant, Diann Blankley, by her litigation friend Andrew M. G. Cusworth, against a decision of Judge Harris, sitting in the Manchester District Registry on 8 August 2011, in which he held that as a matter of law, the claimant’s supervening mental incapacity automatically frustrated and terminated a contract of retainer she had entered into with her solicitors. Judge Harris struck out those parts of the claimant’s costs bill relating to work undertaken by the solicitors after 6 March 2007 in relation to her claim against the defendant, Central Manchester and Manchester Children’s University Hospitals NHS Trust.

The claimant suffered brain damage at the defendant’s hospital and, in 2002, brought a claim for damages. She acted through her father as litigation friend. In 2005 judgment was entered for the claimant with damages to be assessed. By May 2005 the claimant had regained mental capacity and an order was made that she carry on the proceedings without a litigation friend. In July 2005 the claimant’s legal aid certificate was discharged and she entered into a conditional fee agreement (“CFA”) with her firm of solicitors (“LM”). In February 2007 it was determined that the claimant no longer had the mental capacity to conduct her own affairs or to provide instructions and on 6 March 2007 a partner in LM was appointed as the claimant’s receiver. The quantum proceedings were concluded and LM submitted a costs bill on behalf of the claimant. Part of the claimant’s costs bill related to a period after 6 March 2007 when she was acting through her receiver. The defendant contended that no costs were recoverable in relation to work done and disbursements incurred for that period on the ground that, as a result of the claimant’s mental incapacity, the CFA had automatically terminated.

PHILLIPS J said that it was established that supervening mental incapacity of a principal had the effect of terminating the actual authority of his agent. However, where an agent’s authority arose from a contract, such as a contract of retainer between a solicitor and client, a further question arose as to whether the supervening mental incapacity also had the effect of terminating the underlying contract. A contract was not void even if one party lacked mental capacity when it was made, so it could not be the case that subsequent mental incapacity would, in itself, automatically terminate the contract. Applying the principles governing the frustration of contracts set out in J Lauritzen AS v Wijsmuller BV (The Super Servant Two) [1990] 1 Lloyd’s Rep 1, it was clear that termination of a solicitor’s authority by reason of mental incapacity did not, in itself, frustrate the underlying contract of retainer. The appeal was allowed.

Appearances: V Sachdeva (instructed by Linder Myers LLP, Manchester) for the claimant; M Smith (instructed by Clyde & Co LLP) for the defendant.

Reported by: Sarah Addenbrooke, Barrister.

© 2013. The Incorporated Council of Law Reporting for England and Wales.

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