Expert Witness Journal Issue 69 October/November 2026 - Flipbook - Page 91
Thinking outside
Thinking
the box
outside
on the box
capacity: using Coles v Perfect to
protect a settlement where capacity
is uncertain
by Rachel Barnes, Senior Associate at Clyde & Co.
Capacity issues are a familiar feature of Clinical
Negligence litigation. In most cases, the position is
relatively straightforward: either the Claimant has
capacity to conduct proceedings and make decisions
about settlement, or they do not, in which case a
litigation friend is appointed, and any settlement
requires court approval under CPR Part 21.
alike yet, the costs to be incurred in seeking formal
judicial determination on capacity can be vastly
disproportionate.
Clyde & Co recently acted for the Defendant in a
Clinical Negligence claim where the issue arose
upon reaching settlement at a time when the
Claimant’s capacity was not black and white, there
Occasionally, however, practitioners encounter
being some uncertainty surrounding the evidence
a more di昀케cult scenario. What happens
when
from theWhat
parties
on the when
issue. The Claimant
didparties on the
a more
di昀케cult scenario.
happens
from the
capacity is genuinely uncertain? What capacity
if medical
proceed asWhat
a protected
person with a Litigation
is genuinelynotuncertain?
if medical
evidence does not clearly establish a lack of capacity,
Friend prior to that time and so in considering
yet there remains su昀케cient concern that
futureremains su昀케cient
how bestconcern
to protect
thea position
yetathere
that
future of all parties upon
challenge to a settlement cannot be ruled out?
settlement being reached, the High Court decision
Whilst a settlement may be negotiated
in good
Colesbev Perfect
[2013]
Whilst
a settlementinmay
negotiated
inEWHC
good 1955 (QB)
in o昀昀ered
Coles v aPerfect [2013]
faith and represent an excellent outcome for all
pragmatic answer to the problem.
concerned, if there is a subsequent argument that
the Claimant lacked the capacity to enter into the
In Coles, the Claimant who was 14 years old at the
settlement, questions can arise about the validity
time, su昀昀ered a severe brain injury following
a
time, su昀昀ered
a severe
and 昀椀nality of the agreement. The prospect
of a of the agreement.
marine accident.
Settlementofterms
had been agreed
and 昀椀nality
The prospect
a
settlement being revisited years later is unattractive
and neither party asserted that the Claimant lacked
for Claimants, Defendants, and their representatives
capacity and so the issue arose as to the Court’s
EXPERT WITNESS JOURNAL
89
OCTOBER/NOVEMBER
OCTOBER 2026
