Burgess v Sikorski: deputyship fees in Fatal Accidents Act claims

By Susanna Bennett

The High Court decision of Burgess v Sikorski is novel because the court addressed for the first time whether professional deputyship fees were recoverable in a Fatal Accidents Act case in which two dependants were protected beneficiaries.

The answer of Mr Justice Aidan Eardley KC, sitting as a High Court Judge, was yes. 

Section 3(1) of the Fatal Accidents Act 1976 (the “FAA”) states: “In the action such damages, other than damages for bereavement, may be awarded as are proportioned to the injury resulting from the death to the dependants respectively.”

Case law has interpreted this provision to mean that damages under the FAA are intended to compensate the dependants for what support (financially and in terms of services) arose from the relationship with their relative and has been lost due to their death.  (The exception are claims for bereavement (s. 1A) and funeral expenses (s. 3(5)).  Rupasinghe v West Hertfordshire Hospitals NHS Trust [2016] EWHC 2848 (QB); [2017] P.I.Q.R Q1 expresses it thus at [47]: “The Act is only concerned with losses which flow from what the Deceased did when alive: either by the making of a financial contribution to the household, or by providing childcare and similar services (capable, under the common law, of being accorded a financial value).”  Damages are therefore strictly limited, in contrast to awards for personal injury at common law.

In Burgess [2026] EWHC 1245 (KB); [2026] P.I.Q.R. Q4 Mrs Griffiths died due to the defendant’s negligence, leaving behind her husband and two adult sons.  The sons had learning disabilities and were protected beneficiaries under CPR 21.  To each was awarded a sum exceeding £400,000 in respect of future services dependency.  Mrs Griffiths’ husband, whilst not a protected party, is described as not being financially sophisticated [25].  It was agreed by the experts (Court of Protection solicitors) for both parties that a professional deputy was needed to manage the award. 

The defendants argued that deputyship fees were not recoverable under the FAA.  They relied on the trite legal proposition that FAA damages should only compensate the dependants for the loss of a benefit that the deceased would have conferred.  The cost of a deputy (they argued) did not represent the loss of a benefit which Mrs Griffiths would have conferred.  The claimant relied in support of the claim for deputyship that such fees were a necessary corollary to an award for loss of services. 

Mr Eardley KC allowed the claim and reasoned as follows:  Whilst the benefit of which Mrs Griffiths’ sons had been deprived was her contribution and care for them, the court had to be realistic in calculating the sum which amounted to full compensation for the loss of services.  As with case management costs, deputyship fees were a necessary corollary in order to ensure that the sums awarded were properly spent.  He doubted the decision of Martin Spencer J in Chouza v Martins [2021] EWHC 1669 (QB); [2021] P.I.Q.R. Q4 in respect of damages for the cost of obtaining a court resolution in Spain.

What are the rules governing deputyship?

CPR 21.11(9) requires an application to the Court of Protection for the appointment of a deputy when the damages award for a protected beneficiary exceeds £100,000 (save where someone has power of attorney). 

Section 16 of the Mental Capacity Act 2005 (the “MCA”) provides for the Court’s power to appoint a deputy.  Crucially, a decision by the Court is preferable to a decision by a deputy (section 16(4)(a)), and the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable (section 16(4(b)).  The best interests test (section 4) applies to the decision.  The deputy’s powers and their limits will be set out in the order made by the Court of Protection on the application. 

In reality, in the case of a high value award of damages, a deputy will be needed in a significant majority of cases and will have a broad range of decision-making powers.  Tasks include:

• paying bills;
• entering contracts with care providers;
• ensuring that staff costs can be met, including pension contributions and NI;
• making applications to the Court of Protection;
• preparing an annual report for the Office of the Public Guardian (responsible for supervising deputies);
• claiming social security benefits.

Most deputies appointed across the board by the Court of Protection are lay; they are frequently family members and close friends (cf Senior Judge Lush’s comments in Re M; N v O and P [2013] COPLR 91).  But a professional (and independent) deputy will generally be preferred to manage a substantial personal injury award: Re BM (unreported, 20 May 2014 at [40]).  A list of factors relevant to whether a professional or lay deputy would be most appropriate is at §21-015 of Kemp & Kemp.  This list is also relevant where there is a valid lasting power of attorney in favour of a family member but doubts as to whether they are best placed to manage an award.

Regard should be had to the MCA and the MCA Code of Practice for the full rules affecting deputies.

Estimated costs of professional deputyship based on the current guideline hourly rates are found at chapter J3 of Facts and Figures.  It will be seen that the total costs are high.  Even a lay deputy will incur expenses, such as court fees.

An alternative to the appointment of a deputy, which is usually much cheaper, is the creation of a personal injury trust.  This is less common for protected beneficiaries, but there is no presumption against it: Watt v ABC [2016] EWCOP 2532; [2017] 4 W.L.R. 24.

As is clear from the above, protected beneficiaries for the most part face significant costs in accessing their damages award.  The defendants’ interpretation of section 3 FAA in Burgess has the result that Mrs Griffiths’ sons will need to pay these costs using the sums awarded for other heads of loss.  That places them at a very great disadvantage as a result of their learning disabilities, compared to dependants without such disabilities.  In the author’s view that is most unsatisfactory.  The leading authorities on the meaning of section 3 FAA are not prescriptive as to how the loss of dependency is calculated, save that it must be limited to the benefit which arose from the relationship and has been lost.  It is submitted that Mr Justice Eardley’s reasoning is correct.  The deputyship costs are analogous to case management costs, and form a necessary part of the dependency award in order for it to amount to full compensation for the loss of services.