EXB v FDZ & Ors

B e f o r e :

MR JUSTICE FOSKETT ____________________

____________________

Patrick Vincent (instructed by Prince Evans LLP) for the Claimant Victoria Butler-Cole acting pro bono as an amicus curiae Hearing date: 29 November 2018 ____________________

HTML VERSION OF JUDGMENT APPROVED ____________________

Crown Copyright ©

MR JUSTICE FOSKETT:

Introduction

This case came before me on 23 April 2018 for the purpose of considering whether to approve the proposed settlement of a personal injuries action reached between the Claimant's Litigation Friend (his mother) and the Third and Fourth Defendants. The settlement required the approval of the court pursuant to CPR Part 21.10 because the Claimant was (and remains) a protected party. I gave my approval to the settlement.

For reasons to which I will refer below, it was thought by those who knew him best, including his mother and his very experienced solicitor, that it would be in the Claimant's best interests not to be told the amount at which the settlement had been achieved.

If this suggestion was to be pursued, with the inevitable interference with the Claimant's rights, it was felt that the issue should postponed for further consideration. Since it appeared that the issue might be one for the Court of Protection ('CoP'), the adjourned hearing was to take place before me, sitting in my normal capacity as a Judge of the Queen's Bench Division and also in my capacity as a Judge of the CoP. All High Court Judges are Judges of the CoP by virtue of their office.

Although, as indicated, I am a Judge of the CoP, as with many of my colleagues in the Queen's Bench Division I rarely, if ever, find myself administering the jurisdiction of that court. Since to do so would have been an unfamiliar exercise, I had originally hoped that a full-time Judge of the CoP would be able to sit with me as an assessor. That proved impracticable and, accordingly, I invited Ms Victoria Butler-Cole, who had kindly volunteered to do so, to act as a "friend of the court" in order to assist with the approach of that jurisdiction, a jurisdiction with which she is very familiar. She has done so on a pro bono basis and I should like to express my thanks at the outset for the very considerable assistance she has given.

Background

The accident the subject of this action occurred in October 2013 when the Claimant was aged 26. He was a backseat passenger in a car driven by the First Defendant when the car collided with a car being driven by the Third Defendant and then collided with a tree. The Claimant was not wearing a seatbelt. It is unnecessary to go into detail about the circumstances of the accident save to note that by an agreement approved by His Honour Judge Pearce, sitting as a High Court Judge, on 10 May 2017, it was agreed that the Claimant's damages for his orthopaedic injuries should be reduced by 25% from the full amount and the damages attributable to any other injuries, including those arising from his head and brain injury, should be reduced by 5%.

That summary indicates that he did indeed sustain orthopaedic injuries and a head injury. So far as the former were concerned, he suffered a fracture dislocation of the right hip, an injury to his right shoulder and a minor back injury. He sustained a severe brain injury from which he made a better than expected recovery, but nonetheless is left with permanent difficulties in executive functioning and in aspects of his behaviour. I will refer to this in a little more detail below.

Discussions with a view to settling the damages claim were undertaken and resulted in an agreement, subject to the approval of the court, in a sum designed to compensate him for his future loss of earnings, his support requirements in the future and, of course, the usual other heads of loss usually associated with a permanent head injury. I will not state the agreed sum in this judgment, but given that the Claimant retains a virtually full life expectancy, it will be appreciated that the sum is significant. Any profligate spending would, however, diminish the fund rapidly and could lead to a situation where there were insufficient funds available to support him for the rest of his life (such support coming from a Case Manager and a support worker who sees him on three days each week to help him plan his routine). It is that particular concern that underlies the issue which I have been invited to address.

The settlement did include provision for the appointment of a Deputy to manage the fund. The Deputy appointed was (and remains) Mr Ivan Barry, a partner in the firm of solicitors acting for the Claimant. He was appointed in September 2015 and the terms upon which he was appointed as a Deputy for Property and Affairs were (in standard form) as follows:

I will return to those provisions below.

The evidence from and about the Claimant

Before I deal with the jurisdictional issues, I will endeavour to summarise the evidence I received about the Claimant and his ability to manage and/or understand the implications of spending money. Prior to the hearing, I had been supplied with statements from the Claimant himself, his mother, Dr Gemma Wall (his treating Consultant Neuropsychologist), his case manager (Mr Matthew Unsworth) and Mr Barry.

Attached to the Claimant's statement was a transcript of a conversation he had with his solicitor in June 2018 in which they discussed the question of whether he should know the amount of the award. In a nutshell, his own view at that time was that he did not want to know how much it was, his reason being that he would "probably end up spending it" and likened it to having just "won the lottery or something". He does appreciate that he receives some weekly sums that he regards as his "wages" which is a matter of some daily comfort to him.

He gave evidence before me in the sense that he appeared via video-link and was asked a few questions by Mr Patrick Vincent, instructed on behalf of the Claimant's Litigation Friend, and by me. As I understood him, he felt that the less stress to which he was exposed, the better, and that knowing too much about the financial position would cause him stress. He said that it was "better that I go on not knowing".

On that basis, he had been consistent in his attitude and had expressed the same view to others. Apparently, Dr Wall heard him say (after he left the video conference suite) that he had been "conned" into agreeing that he should not know the level of the award, but (a) if this was genuinely his state of mind at the time, it represented a considerable shift from what he had said previously, and (b) overall it was probably not his genuinely considered view, but something said when the consequences of saying it had not been weighed up. As indicated below, Dr Wall indicated that his ability to weigh up competing considerations is compromised by his brain damage. Mr Unsworth said that his "decision making is very much in the moment without consideration of the consequences", a view shared by Mr Barry and Dr Wall. Mr Unsworth continued in his witness statement thus:

That echoes what his mother said. She will know her son better than most. She is anxious that those who do not know him know about the circle of friends he used to keep and the lifestyle he used to follow. She describes the circle of friends as "colourful" and from a working-class area in the North. By "colourful" she means that they had been involved in criminal activities, including drug-taking. Indeed, the Claimant himself had been involved in some criminal activities. She believes that he maintains the same group of acquaintances and is worried that, if that circle got to know that there was a substantial fund behind him, he would be prevailed on to lend money to them. She speaks of occasions when the Claimant says that he has borrowed money from someone and needs to pay it back. She questions whether this is the true position. She says that she does not think he would be able to keep the size of the fund to himself if he knew.

Mr Unsworth speaks of the frustration the Claimant experiences over money and the obsessive nature with which he feels the need to spend it. He enlarged on that in this way:

He told me of an occasion when the Claimant was provided with money for a holiday and spent some of the money on a canoe or dinghy and an occasion when he received £2000 in back benefits and spent it within four days. He has been known to purchase three or four pairs of the same trainers on the same occasion.

Mr Barry speaks in much the same terms. One paragraph in his witness statement reads as follows:

Mr Barry emphasises that neither he nor the Claimant's support team are with him on a daily basis and cannot always be there to protect him from his vulnerabilities and from responding to peer pressure.

The evidence to which I have referred so far has largely originated from those "on the ground" who have to deal with the Claimant on a fairly regular basis. Dr Wall is a little further removed from the daily routine of the Claimant's life and the support that he requires, but has given an impressive analysis that is worth recording, at least to some extent. Much of what she says supports the validity of the observations made by the other witnesses. She also says some things of wider interest in this context to which I will return at the end of this judgment. (Incidentally, she does not know the size of the award in the present case.)

So far as the Claimant is concerned, she describes his thought processes as follows:

She dealt with the question of whether he has some understanding of compensation at a basic level and said that he "understands that his claim was partly for loss of earnings, and partly to compensate him for the injuries he suffered." However, she went on to say this:

She was asked specifically to address the issue of the Claimant's "best interests" so far as knowledge of the award is concerned. I will record much of what she says about this:

I will return to the significance of this evidence after having reviewed the parameters within which the "best interests" issue is to be determined.

The "best interests" issue and the factors to take into account

Ms Butler-Cole took me to the relevant parts of section 4 of the Mental Capacity Act 2005 ('MCA') which govern this issue. They are as follows:

Other provisions potentially relevant are set out in the following subsections of Section 4:

It is clear from subsections (4) and (6) that the views of a person lacking capacity are still relevant even if he or she lacks capacity to make the particular decision. This accords with the UN Convention on the Rights of Persons with Disabilities ('CRPD') and, in particular, Article 3:

Ms Butler-Cole rightly submits that these principles suggest that, ordinarily, a person in the Claimant's position should be informed of the details of a settlement award because this would be to treat him in the same way as a person without a disability. Mr Vincent accepts that depriving the Claimant of knowledge of the size of his award constitutes an interference with those Convention rights, but the issue, he suggests, is whether, when balancing the effect of that interference against the potential harm arising from conveying the information to him, greater harm would be done by the latter.

I will return to that issue shortly, but to complete the other guidance there is about these matters I should refer to the Mental Capacity Act Code of Practice which contains the following provisions relevant to the involvement of the person who lacks capacity in the "best interests" decision:

Discussion on the "best interests" issue

In relation to the question of whether the Claimant "is likely … at some time [to] have capacity in relation to the matter in question", I consider that the answer is "no". It is, of course, possible that this may occur, but that is not the statutory test. If the position now is that he does not possess such capacity, it is because of the brain damage he sustained. The evidence suggests that it is unlikely that this will now improve beyond the improvement to date. Nothing in this context is, of course, treated as permanent and the Deputy, if no one else, has to keep under review the interests of the person for whom he acts. However, for the purposes of the considerations required by statute on the "best interests" issue, I consider it unlikely that the Claimant will have or regain capacity to make this decision.

The taking into account of the Claimant's own views, wishes and feelings, so far as reasonably ascertainable, is required. As will be apparent, I have received evidence about this and the conclusion to be drawn from all the evidence is that when the Claimant is capable of sitting down and weighing up the competing considerations calmly, possibly with the assistance of others, he considers that it would be in his best interests not to know the amount of the award.

In relation to the terms of subsection (7) of Section 4 of the Act, I have received evidence from his Case Manager, his treating Consultant Neuropsychologist, his mother and his Deputy.

It will come as no surprise that the evidence that it would not be in the Claimant's best interests to know the amount of the award is overwhelming, certainly as the evidence stands at the moment. Concerns over the dissipation of the fund designed to fund his lifetime's needs is one consideration of importance, as is his inability fully to understand the value of money and the frustrations (leading to confrontations) to which this gives rise. As I have said, unless his condition changes significantly (which, on the evidence, is unlikely), it is likely that this will remain the position permanently. Nonetheless, as I have also said, his condition needs to be kept under periodic review for this purpose.

The primary question, however, is whether I can conclude, on the balance of probabilities, that the Claimant cannot make for himself the decision about whether he should be told the value of the award. As Ms Butler-Cole says, this is difficult in the present case because "by definition, the Claimant cannot be presented with the information relevant to the decision in order to assess his capacity, as that would make the entire exercise redundant." Nonetheless, the Claimant has expressed his views on the matter without the exact figure being known to him and there is evidence (particularly in his comment after he left the videoconference room after giving his evidence) that his ability to make this decision is variable and that he could not necessarily sustain over any meaningful period the making of such a decision given his inability to control his impulses and weigh up all the relevant considerations.

In those circumstances a declaration as to incapacity in relation to this specific decision is justified.

What order, if any, should be made?

The first question is whether any order needs to be made at all under the CoP jurisdiction. Mr Barry has expressed the view that this particular "best interests" decision is not a decision that falls within the scope of his appointment. Ms Butler-Cole suggests that paragraph 1(a) of the Deputyship order (see paragraph 8 above) gives him authority "to make decisions on behalf of [EXB] that he is unable to make for himself in relation to his property and affairs …." She submits that the decision whether to inform the Claimant of the details of his settlement "can properly be construed to be within the Deputy's powers, being a decision in relation to his property and affairs." Mr Vincent submitted that this was not so clear and that the "conditions or restrictions" in paragraph 2, to which the power conferred in paragraph 1 are subject, lends a more restrictive interpretation to the apparently wide-ranging nature of that power.

I would prefer to leave that issue for consideration in a case where it truly arises. In this case Mr Barry has advanced a very persuasive argument (supported by other witnesses) that his role as EXB's Deputy will be enhanced and made easier if he were able to say to EXB, if he should ask the value of the award, "I can't tell you because the Court has said so." Indeed this would also remove the burden of being perceived as a gatekeeper of such information from the litigation friend, litigation solicitor, or member of the support team. If it were otherwise, it would set the Deputy (or anyone else that EXB perceives to be gatekeeper) as the arbiter of such issues which would be unwelcome and potentially divisive.

I can well see the force of this and, given the powers conferred on the CoP by sections 15 and 16 of the MCA, thus propose (subject to what is said in paragraph 41 below) to make the decision the decision of the court and the subject of a declaration and, if necessary, further orders or directions.

Section 15(1) provides as follows:

Section 16 provides as follows:

Any order or direction made under section 16 "may be varied or discharged by a subsequent order": section 16(7). It follows that the court can revisit its order, particularly if there is a material change of circumstances.

The form of order suggested by Ms Butler-Cole is that the Claimant's Deputy "shall not disclose information about the total value of the Claimant's settlement award to the Claimant, and shall direct others who have knowledge of this information not to inform the Claimant." Mr Vincent accepted that such an order might suffice, but said that it does possess the disadvantage that anyone would have to tell the Claimant, if he raised the issue, that they had been told by the Deputy not to tell him the amount of the settlement rather than telling him that the court had said that they could not do so. This risks, he suggested, the interpersonal difficulties between the Deputy and the Claimant referred to above which, if possible, should be avoided. He submitted that the court could make an order – effectively in the form of an injunction – preventing any person who knows of the size of the award from disclosing that information to the Claimant. It would be akin to an order for possession against "persons unknown" in possession proceedings. Ms Butler-Cole submits, however, that it would be unusual for the CoP to make an injunction preventing disclosure, particularly against people who are not parties to the proceedings.

Whilst I can see the attractions of a mandatory order such as that suggested by Mr Vincent in the Claimant's best interests, I am not at all sure how such an order could be policed and how anyone in breach of it could be dealt with. An order with a penal notice attached seems somewhat disproportionate and draconian in the circumstances and an order without teeth is arguably an order that should not be made.

Whilst I am not sure that a wholly effective order can be fashioned, I consider that there is a half-way house in this regard, bearing in mind that the reality in this case seems to be that Mr Barry (and any successor of his as Deputy) will almost certainly know precisely who knows the size of the settlement and will probably (not necessarily certainly) get to know if the information has leaked out. I would propose that the order comprises a declaration as to the Claimant's incapacity to make the decision, a declaration that it is in his best interests that he does not know the size of the award, a declaration that conveying such information to him (whether by the Deputy or anyone else who has knowledge of the size of the award) would be unlawful and a provision that the Deputy may apply to the CoP on an urgent "without notice" basis for an order preventing the disclosure of the size of the settlement if he receives information that someone else has acquired knowledge of it. Further than that I am not sure it is possible to go. It would be for the Deputy initially to draw the attention of the order to anyone he knows has knowledge of the amount of the settlement.

It is common ground that some machinery should be incorporated an in any order to ensure periodic reviews of the position although, as I have indicated, the evidence tends to suggest that the Claimant's incapacity to make the relevant decision is seated in his brain damage which is permanent and irreversible.

Having seen and commented on a draft of this judgment, Ms Butler-Cole and Mr Vincent have kindly formulated an order that gives effect to it which appears as an Appendix to the judgment. I am content that an order be made in those terms.

The costs of this exercise

The Claimant seeks the costs of this particular exercise against the Third and Fourth Defendants, contending that it is their tort that has necessitated it. It is accepted that it would have been preferable for the question of whether an order of this nature should be made to be finalised on the day of the approval hearing (as to which see further below), but this was a novel litigation event and required handling correctly with a consequent postponement of the decision on the issue.

Objection is taken to paying the costs of the exercise by the Third and Fourth Defendants. They have been provided with the opportunity to comment on the application and I have seen a detailed response on their behalf from Messrs Keoghs LLP. In summary, it is said that they should not be responsible for the costs because all issues between them and the Claimant were concluded by the settlement approved in April this year and that this particular issue is a "solicitor/own client" issue that should not be laid at the door of the tortfeasor. It is also contended that this principle would apply whenever the issue of the Claimant's incapacity to make the relevant decision had arisen. Attention is drawn to the fact that no claim for the costs attributable to this issue was made in the Schedule of Loss and to the proposition that the acceptance or conferment of liability for costs on the Third and Fourth Defendants might lead to an open-ended commitment to pay the costs associated with repeat applications.

Ms Butler-Cole has helpfully reminded me that, since the issue has been dealt with under the CoP jurisdiction, the CoP rules concerning costs apply. These provide, as a general rule, that where the issues concern financial matters, the costs of all parties come out of the protected party's estate (rule 19.2). In welfare cases, the general rule is that each party bears his own costs. The court has a broad discretion to depart from the general rules if the circumstances make a different order appropriate (rule 19.5). In this case, the Third and Fourth Defendants have not been made formal parties to this application, but have, of course, had the opportunity to make representations about the costs order sought. In those circumstances, an order dispensing with the need to make them parties could be made or, alternatively, the order could recite that they are to be treated as having been made parties.

The application for costs made on behalf of the Claimant relates only to the costs associated with the application seeking the declarations I propose making. It does not seek costs of future applications. If provision for future applications is to be sought, it seems to me that there would need to be evidence about the likely frequency and the proposed paying party would need to be able to respond to it. That is more conveniently dealt with as a head (or part of a head) of damage and claimed as such. It could well be said that claiming the costs of an application such as the one before me ought to be included as part of the damages claim and indeed there would be every reason to do so if the need to make it had been identified at an early stage. That, however, was not so in this case and, for my part, I do not see that there is any objection to making the claim in this case as an application for costs in the CoP proceedings. The general issue was flagged up before the approval hearing took place and I have not been shown any correspondence or other documentation that demonstrates that the costs of this issue was included in the settlement. This is different from saying that there might be cases where the that was clearly what had occurred.

The more important question is whether, in principle, such a liability should be laid at the door of the tortfeasor. In my judgment, the need to make such an application arises directly out of the injury caused by the tortfeasor and I can see no principled basis for denying liability for the costs of the exercise, whether the claim for costs is sought as a head of damage or by way of an application for costs.

On that basis, in this case I consider that the application is well-founded. In my view, the arguments concerning the quantum are more appropriately dealt with at a detailed assessment which I shall order.

Practical and procedural issues

This case is the first I can recall when an issue such as that which has arisen has occurred. That does not, of course, mean that it has not happened before, but I apprehend it may be a rare occurrence. However, cases involving head injury with frontal lobe damage (which is frequently associated with the compromise of executive functioning that occurred in this case) are relatively frequent. It is possible that an application of this nature has simply not been considered in other cases. Dr Wall, in a final passage of her witness statement, said this:

If it is the case that it is an issue that might arise for consideration more frequently than hitherto, I think there is at least the makings of a case that the inter-relation of the normal rules of civil practice and the rules of the CoP is considered with a view to trying to streamline a way of dealing with the issue, if it arises, in a convenient and fair way. As I have already said, I have been greatly assisted by both Counsel in this case and, in particular, by Ms Butler-Cole who kindly agreed to act on a pro bono basis. However, that cannot be expected in every case, but it is possible that the issue (or some other welfare issue) will arise at the time when the case is still proceeding in the High Court. Whilst some QB Judges will have experience of the CoP jurisdiction, many will not. (There is also the question of what happens where an action in the County Court raises a similar question.)

All I can do is to flag up the issue and invite the appropriate bodies to consider it. I will send a copy of this judgment to the Deputy Head of Civil Justice and to the Vice-President of the Court of Protection so that they can consider whether any consultation on this issue is required and whether any action needs to be taken as a result.

Conclusion

There will, therefore, be declarations in the terms I have indicated and an order the Third and Fourth Defendants will pay the costs of the application to be assessed on the standard basis of not agreed.

I repeat my gratitude to both Counsel and to Ms Butler-Cole, in particular.

The Claimant's solicitor, Mr Gary Smith, is to be complimented on spotting and pursuing an apparently novel issue which undoubtedly required consideration in the Claimant's best interests.

IN THE HIGH COURT OF JUSTICE CLAIM NO.HQ15P04839

QUEEN'S BENCH DIVISION

AND IN THE COURT OF PROTECTION

The Hon Mr Justice Foskett

B E T W E E N:-

Claimant

Defendants

UPON hearing Patrick Vincent, Counsel for the Claimant, and Victoria Butler-Cole, amicus to the court, on the 29 th November 2018

AND UPON the settlement of the Claimant's claim against the Third and Fourth Defendants ("the Settlement") having been approved by the court on 23 rd April 2018, on which date the court further made directions for the determination of the matters set out in this Order

AND UPON the court exercising the jurisdiction of the Court of Protection

AND UPON the Claimant's deputy undertaking to consider whether any application should made to the Court of Protection to revoke or vary this order at least every six months from the date of this order

AND UPON the Claimant's deputy having permission to apply to the Court of Protection without notice for a further order in the event that he considers there to be a realistic prospect of any person acting or preparing to act in any way that the deputy considers to have been declared unlawful by paragraph 3 of his order

IT IS DECLARED AND ORDERED PURSUANT TO SECTION 15(1)(c) AND SECTION 16 OF THE MENTAL CAPACITY ACT 2005 THAT:

AND IT IS FURTHER ORDERED THAT:-