The following Private Client practice note provides comprehensive and up to date legal information covering:
On the face of it, there would appear to be no specific impediment, if there is no reason to suppose that a person is without capacity, in them litigating. If there is no reason to suppose that a person is without capacity, there is, equally, no impediment to them being sued. Where they are without capacity or a suspicion they may be without capacity there may be a problem and this issue should be at the forefront in any elderly client practice.
A party to litigation who lacks the capacity to conduct the proceedings is a person lacking capacity within the definition of the Mental Capacity Act 2005 (MCA 2005) and, since 1 October 2007, is known as a 'protected party'. Where a claim is made by or on behalf of a protected party or against a protected party, no settlement, compromise or payment and no acceptance of money paid into court is valid, so far as it relates to the claim by, on behalf of or against that person, without the approval of the court. The test is whether the party to the litigation is capable of understanding, with the assistance of his legal advisors and any necessary experts, the issues on which his decision or consent is likely to be necessary in the course of those proceedings. The test is
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What is rescission of a contract?The remedy of rescission is available to a party whose consent, in entering into a contract, has been invalidated in some way:•the effect of rescinding a contract is to extinguish it and restore the parties to their pre-contractual positions•the main grounds of
The principles of the notarial act are that it is:•an act of the notary and not of the parties named in the document•a record of a fact, event or transaction•in the form of a document, notwithstanding the form of the underlying document, fact, event or transactionThe purpose of the notarial act is
Definition of automatismAn act is done in a state of automatism if it is done by the body without control by the mind, (eg it is a spasm or a reflex), or if it is done by a person who is not conscious of what they are doing. The act may be described as involuntary, but will not be regarded as such
Brexit: The UK's departure from the EU on exit day ie Friday 31 January 2020 has implications for practitioners dealing with provisions in the CPR relevant to cross border matters, including CPR 5.4C (discussed below). For guidance on the impact of Brexit on the CPR, see Cross border
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