When dealing with joint clients, what must you do with respect to a retainer?
Check who has the authority to instruct.
What happened in Vukmincu v Betyouncen (2008)?
Joint clients - husband invested in some scheme but it was not clear whether he was authorised to instruct on behalf of his wife.
When dealing with corporate clients, what must you do with respect to a retainer?
Check who has authority to instruct and confirm in writing.
In civil matters involving insurance, who provides the instructions?
The insurer, not the insured.
Is there a presumption of competence?
Yes - with adults.
When is the presumption of competence displaced?
Elderly, mental illness
In ______ _____ v ______ (2012), it was held that the client lacked capacity and the solicitors should have delayed the matter.
Goddard Elliot v Fritsch.
What is the required standard of capacity?
Gibbons v Wright (1954) - there is not fixed standard. Requires that ‘each party shall have some soundness of mind as to be capable of understanding the general nature of what he is doing by his participation’.
What is the two-limb test to determine capacity in PY v RJS & ORS (1982)?
- the person appears incapable of dealing, in a reasonably competent fashion, with ordinary routine matters
- by reason of that lack of competence, there is shown to be a real risk ether that they may be disadvantaged in the conduct of their affairs, or that money/property they possess may be dissipated or lost.
With respect to children, who gives instructions in criminal matters?
The child themselves.
How about in civil?
Child needs an adult tutor
In family matters?
Court might appoint a best interests representative - not taking interests from child but determining what the best interests are independently.
