The Dekagram: 20th May 2024

We trust that our readers have been enjoying the Spring sunshine; the team have spent their time in the sun wisely, reading cases so you don’t have to. First we noted a decision which considers the interplay between English and Scottish guardianship; secondly we read with interest another recent case on interim payments, this one relating to a claim which was said to be tainted by fundamental dishonesty.

Recognition of Scottish Guardianship Orders by the English Court of Protection

Summary

In Aberdeenshire Council v SF (No 2) [2024] EWCOP 10, Mr Justice Poole declined to recognise and enforce a Scottish Guardianship Order (“SGO”) in England under the Mental Capacity Act 2005.

Facts

SF is a Scottish woman with moderate intellectual disability, autism spectrum disorder, anxiety and schizoaffective disorder. She was habitually resident in Scotland but lived in England and Wales for several years. She was initially detained in hospital under the Mental Health Act 1983 and then moved to a supported living placement. At her placement, she was subject to restraint and was under continuous supervision and control. She was unable to consent to such arrangements.

An SGO had been made in favour of SF’s mother by the courts in Scotland, which was to remain in force for seven years. In Scotland, the Adults with Incapacity (Scotland) Act 2000, section 64(1) allows a Guardianship Order to confer on a Guardian the power to authorise or consent to the deprivation of an incapacitous adult’s liberty: K v Argyll and Bute Council [2021] SAC (Civ) 21. The Court of Protection in England and Wales was required to consider whether the SGO authorised SF’s mother to consent to the deprivation of liberty in England and whether it should be recognised and enforced as a protective measure.

Judgment

By virtue of paragraph 19(3) of schedule 3 to the Mental Capacity Act 2005, the court has a discretion to refuse to recognise a protective measure if the case in which the protective measure was made had not been urgent, the adult had not been given an opportunity to be heard and that omission amounted to a breach of natural justice. 

Mr Justice Poole declined to recognise and enforce the order. The case in which the SGO was made was not urgent.  The absence of any opportunity for SF to be heard in the proceedings in which the SGO was made was contrary to article 5(1)(e) ECHR and therefore would have been unlawful under section 6 of the HRA 1998. The order had been made in breach of natural justice and recognition of it would be manifestly contrary to public policy. As such, Mr Justice Poole exercised the discretion under schedule 3, paragraph 19(3) and declined to recognise the SGO.

About the author

Thomas is a busy junior who practises in the full range of Chambers work. 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.

Interim Payments and Allegations of Fundamental Dishonesty

In Mehmood v Mayor [2024] EWHC 1057 (KB) Master Fontaine, who seems to be enjoying a semi-retirement enabling her to return to the legal fray on an occasional basis, considered a Claimant’s application for an interim payment of damages in the context of a defence admitting liability but alleging fundamental dishonesty.

The facts

The Claimant was involved in a road traffic collision with the Defendant and suffered a significant brain injury, as a result of which he was allegedly rendered incapacitous. The Defendant admitted primary liability for the accident, and a trial was listed to determine contributory negligence, causation and quantum. The Claimant asserted that the effects of his brain injury meant that he required a high level of support and personal care and was no longer able to manage the restaurant he owned in the way he had prior to the accident. He received a modest interim payment of £10,000, and made an application for a further payment of £75,000, said to be required to fund rehabilitation and treatment costs; he also applied for retrospective approval of the previous payment.

Pursuant to CPR Part 25.7(1):

(1)  The court may only make an order for an interim payment where any of the following conditions are satisfied–

(a)  the defendant against whom the order is sought has admitted liability to pay damages or some other sum of money to the claimant;

(b)  the claimant has obtained judgment against that defendant for damages to be assessed or for a sum of money (other than costs) to be assessed;

(c)  it is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant from whom he is seeking an order for an interim payment whether or not that defendant is the only defendant or one of a number of defendants to the claim….

Meanwhile, the Defendant had undertaken surveillance evidence, which revealed that the Claimant was opening and closing his restaurant, working long shifts and interacting normally with customers. Accordingly, the Defendant amended his defence to plead that the Claimant had been fundamentally dishonest and that therefore he was not liable to pay any damages and the claim should be dismissed pursuant to s.57 of the Criminal Justice and Courts Act 2015, which reads:

(1)  This section applies where, in proceedings on a claim for damages in respect of personal injury (“the primary claim”)—

(a)  the court finds that the claimant is entitled to damages in respect of the claim, but

(b)  on an application by the defendant for the dismissal of the claim under this section, the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim.

(2)  The court must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.

(3)  The duty under subsection (2) includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest…

Reports from the parties’ medical experts showed that they agreed that the Claimant’s care and rehabilitation needs were less than they had originally believed, but they differed as to whether they considered he had been untruthful during their respective examinations.

The decision

Master Fontaine refused the Claimant’s applications. She held that although the Defendant had admitted liability for the accident, he had not admitted liability to pay damages or some other sum of money to the Claimant. The Defendant had denied liability to pay damages by virtue of his plea of fundamental dishonesty on the part of the claimant pursuant to s.57 of the Act. The issue as to whether the Claimant was exaggerating the effect of his injuries and, if so, whether he was being fundamentally dishonest in doing so could only be resolved at trial when the oral evidence of the medical experts and the witnesses of fact was heard. It could not be resolved on a summary basis with only documentary evidence.

The claimant argued that the court had power to make an interim payment order under CPR 25.7(1)(c) on the basis that it could be satisfied that he would obtain judgment at trial for a substantial amount of money against the Defendant. However, the same considerations applied in respect of 25.7(1)(c) as applied to 25.7(1)(a) and, for the same reasons, the court was not satisfied that the Claimant would obtain such a judgment. Therefore the requirements for ordering an interim payment were not met, notwithstanding that it might cause injustice to the Claimant by denying him funds for interim rehabilitation if he turned out to be successful at trial and the Defendant’s case on fundamental dishonesty was not accepted. For the same reasons, the court was unable to approve the previous interim payment of £10,000, which would have to be dealt with at trial.

Conclusion

For Ancient Ones such as the author, these newfangled dishonesty laws take some getting used to. But the effect of the new 2015 Act is that even where all parties agree that the Claimant has suffered a serious injury, he may still recover nothing where he is shown to have been fundamentally dishonest as to the consequences of that injury. It follows, therefore, that in a case where fundamental dishonesty is raised as a defence, a claimant may not obtain an interim payment, because there is a chance that (s)he will not succeed in securing a damages award at trial. Defendants should, however, resist the temptation to plead fundamental dishonesty in all cases so as to avoid the necessity for making an interim payment; first, because such a pleading would not accord with their legal representatives’ professional obligations; secondly, because it would justify a higher costs budget than otherwise; and thirdly, because in any event the court is bound to consider the evidence in support of such a pleading in examining any application for an interim payment or summary judgment on the issue. In this case Master Fontaine accepted that the surveillance and medical evidence referred to in the Amended Defence was sufficient to raise the possibility of the defence being successful and the Claimant failing to recover anything – as a result the application for an interim payment could not succeed.

About the Author

Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories as a Band 1 practitioner in travel law for many years, and, more recently, listed in aviation as well. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases.