EXB (A Protected Party by his Mother and Litigation Friend DYB) v (1) FDZ, (2) Motor Insurers Bureau, (3) GHM and (4) UK Insurance Ltd. [2018] EWHC (QB)
In this case the court had to consider its approach where it was considered not to be in the claimant’s best interests for him to be made aware of the size of the damages settlement.
Insurers dealing with brain injury cases requiring court approval because the claimant lacks capacity may find this recent Keoghs case to be of interest. Mark Whalley, Keoghs’ partner in the Complex and Catastrophic Loss team, acted for the third and fourth defendants.
The accident occurred in October 2013 when the claimant was aged 23. He was the 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 seat belt. He sustained orthopaedic injuries (including a fracture dislocation of the right hip, an injury to the right shoulder and a minor back injury). He suffered a severe brain injury from which he made a better than expected recovery but nonetheless was left with permanent difficulties in executive functioning and in aspects of his behaviour.
Liability was agreed (and approved by the court in May 2017) on the basis that the claimant’s damages for his orthopaedic injuries should be reduced by 25% and any damages attributable to his other injuries, including those arising from his head and brain injury, should be reduced by 5%. The case came before Mr Justice Foskett on 23 April 2018 to approve the proposed settlement as the claimant was a protected party. So far pretty standard but …….
The complicating factor was that the claimant’s mother and solicitor believed that it would be in the claimant’s best interests not to be told the amount at which the settlement had been achieved. The main reason being that the claimant’s friends were involved in criminal activity, including drug taking, and there was a concern that, if they learned the size of the settlement, the claimant would be prevailed upon to lend money to them. The general issue was flagged prior to the approval hearing but took on greater significance thereafter. If this suggestion was to be pursued it would interfere with the claimant’s rights.
The principles in the Mental Capacity Act 2005 s.4 and the United Nations Convention on the Rights of Persons with Disabilities art 3 suggested that ordinarily a person in the claimant’s position should be informed of the details of the settlement award so that he was treated in the same way as a person without a disability.
The issue was heard before Mr Justice Foskett on 29 November 2018 sitting in his normal capacity as a Judge of the Queen’s Bench Division and also in his capacity as a Judge of the Court of Protection (CoP). All High Court Judges are Judges of the CoP by virtue of their office. Mr Justice Foskett said that he rarely, if ever, found himself administering the jurisdiction of the CoP. Acknowledging that this would have been an unfamiliar exercise, he had hoped that a full time Judge of the CoP would be able to sit with him as an assessor but that proved impracticable. Accordingly an advocate kindly volunteered to do so, to act as a “friend of the court” on a pro bono basis in order to assist with the approach of that jurisdiction. The defendant had no standing at the hearing.
Evidence was taken from the claimant (via video link) and the claimant’s mother, treating neuropsychologist, case manager, support worker and Deputy.
The court decided that it was not in the claimant’s best interests to be informed of the amount of the settlement. He had been left with permanent difficulties in executive function and behaviour that made him impulsive, rigid in his decision making, vulnerable, and unable to fully understand the value of money. This meant that he did not have capacity to make the decision himself about knowing the amount.
The wording of the order was eventually agreed as:
Also, the claimant succeeded in obtaining the cost of the application from the defendants (although they had no locus at the hearing, they were given opportunity and did make written submissions in opposition both to entitlement and extent).
Obiter, Mr Justice Foskett 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. However, this was a novel litigation point and the case was the first that he could recall when the issue had arisen. That said, he noted that cases involving head injury with frontal lobe damage (which is commonly associated with the compromise of executive functioning) are relatively frequent and it was possible that this kind of application had simply not been considered in other cases.
If it is the case that this situation might arise more frequently, consideration should given to the interrelation of the CPR and the rules of the CoP with a view to streamlining a way of dealing with this issue. Mr Justice Foskett has flagged the issue to the Deputy Head of Civil Justice and to the Vice President of the CoP.
Where are we now?
It remains to be seen whether the court will be keen generally on excluding the claimant from knowing the amount of the settlement given the Human Rights issues and may be reluctant to see this as a default outcome in all protected party cases.
Despite the obiter comments, any rule change will take time and the Civil Procedure Rules Committee is unlikely to rush to change unless there is evidence that this is a major issue.
In the meantime the key features to look out for are:
http://www.bailii.org/ew/cases/EWHC/QB/2018/3456.html
For more information, please contact Mark Whalley
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