Legal update: Should a deputy appointed to manage a brain injured claimant’s substantial personal injury award be permitted to withhold from the claimant the amount of the award?

EXB v FDZ [2018] EWHC 3456 (QB): In a civil claim for substantial personal injury damages the High Court concluded that it was not in the brain injured claimant’s best interests to be told the size of his damages award where there was ample evidence that to do so would render the claimant liable to profligate spending and vulnerable to exploitation.

Background

In 2013 the Claimant, aged 26, sustained a severe brain injury in an RTA which left him with permanent difficulties in executive functioning. A claim for damages was brought and liability was agreed. The case came before Mr Justice Foskett in the High Court who approved the settlement which was described as a significant sum. As part of that settlement, the Claimant’s solicitor was appointed as his Deputy for Property & Financial Affairs.

The question then arose as to whether it was in the Claimant’s best interests not to be told of the amount of the settlement. This was the considered view of the Claimant’s mother (acting as his Litigation Friend) and his Deputy who were concerned that if the Claimant knew how much money he had been awarded he would spend it profligately and rapidly diminish the fund which was intended to compensate him for his lifetime’s needs. There was also concern that he would be vulnerable to exploitation by his ‘colourful’ circle of friends who were known to engage in criminal activities including drug taking.

Mr Justice Foskett confessed that he rarely adjudicated in the Court of Protection and adjourned the case to enable him to seek input from a colleague with the requisite expertise.

The Evidence

At the adjourned hearing a specialist Court of Protection barrister, Victoria Butler-Cole, agreed to act pro bono as a ‘friend to the court’. Evidence was heard from the Claimant’s mother, Deputy, treating Neuropsychologist and his case manager.  The Claimant himself also gave evidence by video link. He did not want to know how much his settlement was because he ‘would probably end up spending it’ and likened it to just having won the lottery. He felt it would be less stressful for him not to know. The other witnesses agreed that, due to his brain injury, the Claimant’s decision-making was very much ‘in the moment’ without consideration of the consequences. He was said to be unable to understand the value of money and this caused him frustration. By way of example, the court was told of him having spent hundreds of pounds on trainers within a couple of days. Another example was given of him receiving £2000 in back benefits which he then spent within four days.

Ms Butler Cole submitted that, pursuant to the principles set out in the UN Convention on the Rights of Persons with Disabilities, ordinarily a person in the Claimant’s position should be informed of the details of a settlement award as to do otherwise would be to treat them differently due to their disability. Counsel for the Claimant, while  acknowledging the potential interference with the Claimant’s convention rights, submitted that this needed to be balanced against the greater harm that would be done to the Claimant by informing him of the settlement award.

The Decision

The judge was satisfied that the Claimant lacked capacity to decide whether he should be told the value of the award – although he acknowledged that reaching this conclusion had been difficult as ‘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.’ He was also satisfied that the Claimant was unlikely to regain capacity to make this decision at some time in the future although the judge recommended that this be kept under review by the Deputy.

The judge took into account the Claimant’s own views and wishes – ‘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.’

With regard to best interests the judge concluded:-

‘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 unlikel), 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 precise wording of the order was subject of some debate. Ms Butler-Cole submitted that the decision whether or not to tell a person in the Claimant’s position would ordinarily fall within the Deputy’s power. However, the Claimant’s Deputy (supported by the other witnesses) argued that it would make his job easier, if when asked by the Claimant to disclose the settlement amount, he could tell him that the decision was that of the court rather than his own decision as Deputy. The judge was reluctant to be drawn on whether the decision was one which fell within the scope of a Deputy’s powers stating ‘I would prefer to leave that issue for consideration in a case where it truly arises.’ However, he found the Deputy’s argument very persuasive and made an order in the following terms:-

1. The Claimant lacks the capacity to decide whether or not he should know the amount of the Settlement
2. It is in the Claimant’s best interests that he does not know the amount of the Settlement
3. It shall be unlawful for any person (whether the Claimant’s deputy or any other person who has knowledge of the amount of the Settlement) to convey by any means to the Claimant information about the amount of the Settlement, save that this declaration does not make unlawful the conveyance of descriptive information to the Claimant to the effect that the Settlement is sufficient to meet his reasonable needs for life.

The judge also ruled that the costs of the application were recoverable from the Defendant as the application arose directly from the injury caused by the Defendant. Although the judge acknowledged that the costs of the application ought to have been included as a head of damage in the personal injury claim, in this case the issue was not identified until after the settlement had been agreed. The judge was satisfied that the costs of such an application can properly be claimed either as a head of damage in a personal injury claim or by way of an application for costs.

Comment

Given the amount of personal injury litigation on behalf of brain damaged claimants, it is somewhat surprising that this issue does not appear to have been adjudicated upon previously, at least not in a reported case. The judge’s decision that it was not in this Claimant’s best interests to be told about the size of his award, was no doubt made easier by the fact that the Claimant himself said he did not want to know. The best interests decision would undoubtedly have been more finely balanced had the Claimant consistently demanded to be told.

The order endorsed by the court in this case is likely to be of assistance in future cases where this issue arises.

KATHRYN RIDDELL

Partner in Sintons Healthcare Team

If you have any questions or require any advice on the issues discussed in this article please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk