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The Dekagram: 18th March 2024

Articles, News | Mon 18th Mar, 2024

It’s been a busy week. No sooner had we waved goodbye to Conor Kennedy and Dominique Smith, off to Paris for the Pan European Organisation of Personal Injury Lawyers New Lawyers’ Group Conference, than the Court of Appeal handed down judgment in the appeal in Hadley v Przybylo [2024] EWCA Civ 250, a case of considerable importance to those litigating high value personal injury claims.

Regular readers will recall that at first instance Master McCloud had refused as a matter of principle to budget for the costs associated with the Claimant’s solicitors attending rehabilitation case management meetings because they did not progress the litigation; the Court of Appeal unanimously reversed this decision, holding that such costs could be recoverable, but that they should be considered on their merits on every occasion, and in particular with an eye to reasonableness and proportionality. The Claimant’s claim in this case was for over £130,000 in respect of these costs, and the Court of Appeal indicated that this sum might take some explaining. Nevertheless, the outcome does allow for costs of this nature to be recovered as a matter of principle in some cases, and it will be interesting to see how this is applied by the lower courts on budgeting and assessment in future claims.

Capacity and Best Interests: PSG Trust Corporation Limited v CK, NJ

The Court of Protection recently considered the approach a Property and Affairs Deputy should take when considering whether to inform a protected party (‘P’) of the value of their civil litigation settlement – an interesting case where Mr Justice Hayden undertook a delicate exercise to balance autonomy and protection in the civil litigation sphere where protected parties are awarded damages.

On behalf of the Applicants it was submitted that there was presently no guidance from the Public Guardian on how a Property and Affairs Deputy should approach these issues and further, no “concrete” guidance from the Court of Protection.

Under CPR 21.1(2)(d) ‘a protected party’ means a party, or an intended party, who lacks capacity to conduct the proceedings’.

The relevant key legal principles were distilled by Mr Justice Hayden:

i.       All practicable steps must be taken to facilitate decision making and only when those have been exhausted or are manifestly not viable, is a person to be treated as unable to make a decision ( Section 1(3) Mental Capacity Act 2005 ‘MCA’);

ii.      There is a presumption of capacity which is central to the philosophy of the MCA. It follows that the responsibility for establishing lack of capacity lies on the person or body asserting it. No individual is required to prove his or her capacity. The applicable test is the civil standard of proof;

iii.     Capacity assessments are always “decision-specific”;

iv.     A person is unable to make a decision for himself if he is unable (a) to understand the information relevant to the decision (b) retain it (c) use or weigh it as part of the decision-making (d) communicate it by any means ( Section 1(3) MCA);

v.      A person lacks capacity in relation to a matter if, at the material time he is unable to make a decision for himself because of an impairment of, or a disturbance in the functioning of, the mind or brain. The question is whether the person is rendered unable to make the decision by reason thereof;

vi.     The information relevant to the decision includes information about the reasonably foreseeable consequences of deciding one way or another ( Mental Capacity Act 2005 s. 3(4)(a)).

The court had to determine whether the respondents (CK and NJ) had the capacity to understand the value of their personal injury funds, and to appreciate the extent to which wider knowledge of their assets might render them vulnerable. If they did not have such capacity, a best interests decision had to be taken as to whether they should be told the size of their funds.

Mr Justice Hayden held that before making this decision on P’s behalf, a deputy should consider whether P has capacity to make the decision themselves. In doing so, the deputy should first consider whether P has sufficient understanding of their own vulnerability and of the other factors affecting the decision to decide for themselves whether or not they want to know the value of their award.

Importantly, it is only if P does not have that capacity, that there is a move to make a best interests decision by the deputy.

Against the background of the relevant case law summarised by Mr Justice Hayden, three questions arose in considering the issue:

(1) whether disclosure to P should be automatic and as of right;

(2) whether disclosure was a facet of management of P’s property and affairs; and

(3) how the capacity test should be framed where the focus of concern was on P’s vulnerability.

Mr Justice Hayden considered that disclosure does present a separate question, in and of itself, in respect of which capacity must be determined. He set out that the starting point was that captured by Lord Stephens:

“…the court is required to identify the correct formulation of “the matter” in respect of which it must evaluate whether P is unable to make a decision for himself…” (A Local Authority v JB [2022] AC 1322)

In this instance, the ‘matter’ or decision is whether P wishes to request the value of their funds, and the factors relevant to their capacity to make that decision are likely to include their understanding of:

i.       The nature of the information in question;

ii.      The risks of obtaining it;

iii.     The risks of not obtaining it;

iv.     The benefits of obtaining it;

v.      The benefits of not obtaining it.

Mr Justice Hayden went on to evaluate this in more detail. He stated that when assessing P’s capacity to take the decision, their ability, or the extent of their ability, to recognise, retain, and weigh the above questions and specifically to recognise, retain and weigh their own vulnerability and its potential consequences, will frame the scope of the decision.

He recognised that it follows that if P does recognise, retain and weigh these problems and vulnerabilities, it is likely that the presumption that P is capacitous has not been rebutted. This does not mean, of course, that the identified vulnerabilities have gone away. But importantly, Mr Justice Hayden set out the careful balance that must be struck in these circumstances. He stated that the fact that P may make unwise decisions, in the future, which cause them to fall prey to exploitation, is, ultimately, to expose P, as we all must be to some degree, to the vicissitudes of life and human transgression. He emphasised that the role of this court is to protect and promote human autonomy not to repress it with misconceived paternalism. ‘A life wrapped in cotton wool is a restricted and diminished one.’

In the alternative, if P is found to lack capacity then it follows that a ‘best interests’ decision must be taken.

The Court was not of the view that it is necessary for a deputy to make an application in every case. It was recognised that sometimes, the decision will be clear, perhaps even just common sense. In some cases, however, it will be difficult and require resort to the court.

It was argued on behalf of the Applicant that under the terms of the standard property and affairs property order, the deputy has no power to make a decision that is one “predominantly affecting welfare”. It was contended that this was primarily a welfare decision.

The Judge did not agree with that formulation. He confirmed that what was in issue is the communication of the exact sum of a damages award, which he regarded as a property and affairs matter and the fact that welfare considerations flow from it does not change the nature of the matter.

Mr Justice Hayden was not of the view that it was therefore necessary to extend a deputy’s authority in every case. He did not wish to be prescriptive. He recognised that because the Court of Protection is such a highly fact-specific jurisdiction, it is perfectly conceivable that what might appear on the surface to be a property and affairs issue, is on a proper construction, nothing of the kind and truly a welfare issue. In these cases, an application can be made and a deputy’s authority extended where appropriate.

About the Author

Lucy Lodewyke was called in 2018 and undertakes work across all of chambers’ practice areas. Prior to coming to the Bar she worked as a paralegal at Stewarts in the Personal Injury Department, and then as a paralegal to a barrister specialising in personal injury and clinical negligence work. This invaluable experience has given her an insight into the profession from another perspective, with knowledge beyond her call.

Deka’s travel team has been croissant the channel: a summary of the PEOPIL conference in Paris

On Thursday and Friday last week, members of Deka’s travel team said “Au Revoir!” to Chambers and travelled to Paris for the PEOPIL New Lawyers’ Group Conference. Many of our regular readers will be aware of, or indeed members of, PEOPIL, but for those who are not aware, PEOPIL brings together personal injury lawyers from across Europe (and further afield) to share knowledge of our experiences of personal injury law in our own jurisdictions and to create connections across the globe.

This year’s NLG was hosted in the atmospheric Cercle de l’Union Interalliée, where a range of sessions from discussing German case law on compensation for psychological damage and escaping liability waivers in the USA, to civil liability in the age of AI, were discussed. We also had the privilege of hearing from Supreme Court Judge Benoit Mornet about personal injury law in France and psychological injuries caused by terrorist attacks. To top it off, our very own Conor Kennedy provided a workshop on expert reports (including looking at issues that may arise in local standards reports) with Lorna Badham, which was a roaring success.

Not only are conferences such as this fun and informative, but they are paramount to our development and practice as travel lawyers. The ability to collaborate with our fellow counterparts across the globe cannot be understated; nor should it be. We all have cases where we need to utilise the expertise and knowledge of those abroad to understand their customs, laws, and practices, particularly where cases in this jurisdiction are governed by foreign law or standards. Understanding what foreign law or standards require in cross-border cases, and whether those requirements are actually met, is fundamental when determining liability and assessing prospects of success. These forums allow us to share and discuss key issues in our cases, as well as to learn about current issues in personal injury law across the globe that may impact our own cases in due course. They also provide the opportunity for us to discuss not only what we require of foreign experts when we instruct them, but also what they require from us. 

We at Deka Chambers want to thank PEOPIL for a great conference and we look forward to the next one!

About the author

Ranked by the Legal 500 2021, 2022 and 2023 and by Chambers and Partners 2023 as a Rising Star, Dominique Smith was called in 2016 and has a busy practice in travel law. She undertakes work for both Claimants and Defendants in package travel claims, contractual disputes, and other related claims. Dominique has a particular interest in cross-border clinical negligence claims and regularly appears in the Coroners’ Courts.

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