The Dekagram: 18th December 2023

It’s almost impossible to believe it, but this is the last Dekagram of the year. We’d like to wish our readers a very Merry Christmas and a Happy New Year, and to thank them for their support and companionship over 2023. We look forward to 2024, and the results of the numerous government consultations currently ongoing or very recently closed. And, of course, a number of outstanding Supreme Court decisions, on everything from secondary victims to ex turpi causa to vicarious liability. We should also see further guidance from the Court of Appeal on cancellation and refunds and on Spanish penalty interest. It’s already shaping up to be an interesting year, and our readers may rest assured that we will keep you up to date with all the latest developments as they happen, not least because members of Deka Chambers are involved in all of them.

Recognition and Enforcement of Foreign Judgments in the Court of Protection

Summary

In the Health Service Executive of Ireland v A Hospital Provider [2023] EWCOP 55, the Vice President of the Court of Protection set out some procedural guidance in respect of applications for the recognition and enforcement of foreign orders under schedule 3 to the Mental Capacity Act 2005, including whether such applications can be dealt with on the papers.

Facts

RO is an Irish citizen in her twenties who has a severe anorexic disorder. In March 2021, the Health Service Executive of Ireland applied to the Irish High Court for an order securing her place at a specialist eating disorder clinic in England and Wales for detention and treatment. In that same month, Mr Justice Holman recognised and enforced the order. In April 2021, RO was admitted to the clinic in England and Wales, where she has continued to receive treatment.

In October 2023, the Health Service Executive of Ireland applied to extend the order, which would continue to secure her place at the clinic. The application before the Irish High Court considered the matters identified by Mostyn J in the Health Service Executive of Ireland v Florence Nightingale Hospitals Limited [2022] EWCOP 52, which we covered in a previous article available here. The application before the Irish High Court was granted and the final order of the Irish High Court was provided on 16^th October 2023. On 18^th October 2023, an application was heard by Mrs Justice Theis for the recognition and enforcement of the Irish order continuing her detention and treatment at the clinic in this jurisdiction.

Judgment

The Vice President applied section 63 and schedule 3 to the Mental Capacity Act 2005, which implement the Hague Convention without the need for ratification procedures and through which the courts in England and Wales can recognise an order from another state [§16]. In this case, the requirements of schedule 3 were met [§18]. Mrs Justice Theis went on to give guidance on the management of schedule 3 applications [§27-28]. She notes that in any core bundle in support of a schedule 3 application the following should be included:

1. The application;
2. The skeleton argument;
3. The draft order;
4. The consents (if applicable);
5. The order of the Irish High Court;
6. The transcript of the judgment and, in cases where this is necessary, the transcript of the hearing. This is to cover situations where the ex-tempore judgment refers to exchanges during the hearing. Where the transcript is lengthy, relevant passages should be marked up and linked to the skeleton argument.
7. A separate bundle which includes the other relevant material from the proceedings in Ireland, so they can be referred to if required.

Comment

This is an example of where the Court of Protection has applied the checklist given by Mostyn J in the Health Service Executive of Ireland v Florence Nightingale Hospitals Limited [2022] EWCOP 52 setting out the requirements which must be met in schedule 3 applications. The judgment provides helpful guidance on the evidence which is required in respect of schedule 3 applications. The Vice President did not accept a submission made on behalf of counsel for the HSE that there may be certain categories of schedule 3 applications that could be considered without an attended hearing, noting that ‘in accordance with paragraph 17 of Practice Direction 23A, the presumption is that these applications will be determined at an oral hearing if they involve authorising deprivation of liberty’ [25]. Mrs Justice Theis agreed with observations made by Mostyn J in the Re SV case that due to the seriousness of the consequences of the reciprocal order being sought, as well as the international aspects, such orders should only be made by Tier 3 judges following an attended hearing in court, unless the Tier 3 judge otherwise directs [§25].

About the Author

Thomas Jones is a busy junior who practises in the full range of Chambers work including civil litigation, health and social care, mental capacity and the law relating to children. He is ranked in the “up and coming” category in Chambers and Partners (Court of Protection: Health and Welfare) and the “rising star” category in the Legal 500 (Court of Protection and Community Care). Prior to joining Chambers, he worked as a stagiaire at the Court of Justice of the European Union and studied European Law at the College of Europe in Bruges.

Avoiding Double Recovery: to what Extent are Periodical Payments for Care and Case Management Hypothecated?

The issue

Given that damages for serious personal injuries are usually placed in personal injury trusts so that they, and periodical payments for care, are not counted when determining a claimant’s entitlement to state funds, there is the obvious potential for double recovery. In theory, a claimant could recover damages intended to pay for care, and then obtain state funding, thus recovering both from the defendant and from the tax-payer. Defendants – and judges – are keen to avoid this, and common mechanisms for doing so are: reducing the damages (where the court finds the claimant is likely to receive state funds); providing a mechanism for repayment where state funds are received (a form of “Peters Promise”); or a mechanism to restrict the claimant from applying for statutory funding.

Hypothecation

In the recent case of WNA v NDP [2023] EWHC 2970 (KB) the court had to consider the extent to which periodical payments for care and case management were hypothecated. Everyone agreed that the PPs should be used for care and case management, and that the claimant should not apply for state care unless the PP had been exhausted. But what should happen if, in a given year, the PP was not entirely spent on care and case management? The defendant argued that PP funds should only be spent on care and case management, and that if, at the end of a given year, there was surplus, this should be saved up and spent on care and case management in future if there was a shortfall. Essentially, that there should be a “running account”.

Discussion

The judge identified a number of problems with the defendant’s suggestion.

• Would there be a minimum surplus to be taken into account? If not – sums of a few pounds or even pence would need to be ring-fenced, potentially indefinitely.
• Was it proportionate to require the claimant to keep detailed records for many years? This was potentially a heavy burden. If not, should there be a cut-off point? If so, when?
• Was the cause of the surplus relevant? What if the claimant ended up under-spending because suitable staff were not available, and had a difficult time as a result? Was it right to prevent the claimant from spending a surplus on something else in that year in those circumstances?
• The PP was for care and case management. State funding is not available for case management. What if the shortfall was from case management rather than care?
• Would the claimant be required to keep the surplus in an interest-bearing account? Would the interest count as part of the surplus?
• What if the surplus was accumulated after state funding had been obtained, rather than before? Why should that be treated differently?

The decision

The judge considered that the practical problems were too significant. The PP was made, in a given year, for care and case management in that year. The answer was that the PP should only be used for care and case management within the particular accounting period (i.e. year), and if there was a surplus in a given year, that could be spent on something else. The claimant did not have to save up a surplus to help cover any shortfall in future years.

About the Author

Andrew Spencer was called to the Bar in 2004, and is listed in the Legal 500 as a Band 1 practitioner in travel law. He acted for the Claimant in the seminal case of Japp v Virgin Holidays Limited [2013] 11 WLUK 131, in which the Court of Appeal considered the time at which applicable local standards should be determined for the purposes of liability under Regulation 15(2) of the Package Travel Regulations; but he is equally comfortable acting for Claimants and Defendants in all travel related claims.