Kevin King (a protected party by his litigation friend Susan Rummey) v The Wright Roofing Company Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 07 August 2020 |
| Neutral Citation | [2020] EWHC 2129 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2019-000762 |
| Date | 07 August 2020 |
[2020] EWHC 2129 (QB)
THE HON Mr Justice Kerr
Case No: QB-2019-000762
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Esther Maclachlan (instructed by Anthony Gold Solicitors) for the Claimant
Anthony Reddiford (instructed by Reynolds Porter Chamberlain LLP) for the Defendant
Hearing dates: 14 and 15 July 2020
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The question that confronts me in this case is whether the defendant's admitted tort has deprived the claimant of capacity to litigate and manage his own finances. The claimant was a roofer by trade. He suffered a severe head injury, and other serious injuries, falling from a roof in March 2016.
The defendant admits liability, subject to contributory negligence. The claimant has only partially recovered from the accident. There is considerable permanent damage. He began to receive interim payments before the claim was issued.
He can no longer work, has lost his income and has been living off the interim payments and beyond them, running up debts including to his parents with whom he had been living since before the accident. He took five or six holidays in the Dominican Republic, funded by interim payments.
He issued the claim in March 2019 as a protected party, with a litigation friend. In its defence, the defendant denied that he lacked capacity to litigate and manage his financial affairs. The question of capacity comes before me as a preliminary issue. I heard evidence from lay and expert witnesses.
The claimant did not give evidence but, I am told, regards himself as having capacity to litigate and manage his finances. He mistrusts his solicitors and others involved in the claim on his side. He is weary of and exasperated with the litigation. He has approached the defendant's insurers, bypassing his solicitors, with a view to reaching a settlement directly with the insurers.
The claimant has made cynical remarks indicating that he regards the litigation process as a money spinner for the professionals involved. They are, he maintains, exploiting his claim and being paid out of his compensation money. He has also expressed a desire to buy a property and settle in the Dominican Republic, where he says he has friends.
The claimant's solicitors at present receive instructions from the current litigation friend, Ms Susan Rummey, who gave evidence. The solicitors, with the approval of the court, are withholding certain interim payments from the claimant, wishing to protect him from squandering them. The Court of Protection appointed two deputies in February 2020 to manage his finances.
The claimant's litigation friend and solicitors assert that he does not have capacity to litigate this claim or manage the compensation he receives from it, applying the tests in the Mental Capacity Act 2005 ( the Act). They are concerned that he will “under-settle” the claim, squander the fruits of it and become unable to pay for the care he needs and will need for the rest of his life.
A trial on contributory negligence and quantum is scheduled to take place in a window from January to April 2021. An offer or offers of settlement under CPR Part 36 have been made and rejected, but I do not know when and in what amounts. Even if I did, I would be in no position to assess whether they are, objectively good, bad or indifferent from the claimant's perspective.
I must decide whether the claimant has capacity to litigate and manage his own finances, i.e. whether he is “a protected party”, who “lacks the capacity to conduct the proceedings” ( CPR rule 21.2(d)) and whether he is a “protected beneficiary”, i.e. a protected party who also “lacks capacity to manage and control any money recovered by him or on his behalf or for his benefit in the proceedings” ( CPR rule 21.2(e)).
The Law
I can deal with the law briefly as there was no dispute about the effect of the statutory provisions and their interpretation. It is agreed that I cannot twist the meaning of the statutory provisions to protect this claimant from himself and the risk that he will make unwise decisions. The Act prizes personal autonomy highly.
Capacity is presumed unless its absence is proved on the balance of probabilities (section 1(2) and 2(4)). A person is not to be treated as unable to make a decision unless all practicable steps to help him do so have been taken without success (section 1(3)). A person must not be treated as unable to make a decision merely because he makes an unwise decision (section 1(4)).
A person has or does not have capacity “in relation to a matter”. The test is whether “at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain” (section 2(1)). The impairment or disturbance may be permanent or temporary (section 2(2)).
There are four aspects to inability to make a decision (section 3(1)(a)-(d)). A person is unable to make a decision for himself if unable “to understand the information relevant to the decision” ((a)); “to retain that information” ((b)); “to use or weigh that information as part of the process of making the decision ((c)); or “to communicate his decision …” ((d)).
Ability to understand the information relevant to a decision includes being able to understand an explanation of it given “in a way that is appropriate to his circumstances (using simple language, visual aids or any other means)” (section 3(2)).
Retention of the information “for a short period” is sufficient (section 3(3)). The information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another, or of failing to make the decision (section 3(4)).
I was helpfully referred to some cases. I need not cite them in detail. I was taken by Mr Reddiford, for the defendant, to MacDonald J's useful summary in An NHS Foundation Trust v. AB (by her litigation friend, the Official Solicitor) [2019] EWCOP 45 at [26]; to some of the authorities examined by MacDonald J in that case; and to the judgment of Henderson J (as he then was) in D v. R [2010] EWHC 2305 (COP) at [43].
Capacity to conduct proceedings may fluctuate. The question is whether the relevant person has capacity to conduct the proceedings generally, not specific aspects of them ( Dunhill v. Burgin (Nos 1 and 2) [2014] 1 WLR 933, per Baroness Hale at [15]). Here, the parties believe the claimant's present state is unlikely to change materially between now and the trial next year.
Ms Maclachlan referred me to observations of Burnett J (as he then was) in V. v. R [2011] EWHC 822 (QB). He explained at [10] that the policy of the Act is “to avoid concluding that incapacity is established unless, after careful enquiry, it is necessary to do so”; reflecting the common law approach that a finding of incapacity should not be lightly made as it “substantially curtails the individual's right of action” and in the context of litigation “curtails the right of unimpeded access to the law”.
I also noted a recent Court of Protection case, Tower Hamlets LBC v. PB (by his litigation friend, the Official Solicitor) [2020] EWCOP 34. A man prone to alcohol abuse wished to continue drinking and disputed the suitability of local authority accommodation at which he would be denied access to alcohol. Hayden J emphasised at [6] that the requirement to differentiate between inability to make a decision and the making of an unwise decision:
“reflected extensive common law jurisprudence, prior to the Mental Capacity Act, recognising that the law does not insist that a person behaves “in such a manner as to deserve approbation from the prudent, the wise or the good”: Bird v Luckie (1850) 8 Hare 301. It is the ability to take the decision, not the outcome of it which is in focus … .”
At [7], Hayden J pertinently cited the observation of McFarlane LJ in PC v. City of York [2013] EWCA Civ 278, at [54] (also drawn to my attention by Mr Reddiford) that:
“there is a space between an unwise decision and one which an individual does not have the mental capacity to take and … it is important to respect that space, and to ensure that it is preserved, for it is within that space that an individual's autonomy operates”.
The Facts
The claimant was born in June 1974. From his early twenties, he was diagnosed with depression and started taking prescribed anti-depressants. He became a roofer and enjoyed his work and social life. He had some history of cocaine abuse. He had relationships with several women and married one of them. They went on honeymoon to the Dominican Republic.
The claimant's marriage broke down, the couple separated but are not divorced and remain on good terms. The claimant has no children. From about 2011, he went to live with his parents because of the marriage breakdown. He paid them about £30 per week for his upkeep. He was earning about £30,000 gross, or £24,000 net, per annum as a roofer. He went out with friends most evenings.
There is no evidence that the claimant had any difficulty managing his finances, income and expenditure before his accident. His current litigation friend, Ms Rummey, with whom he was at one time in a romantic relationship, stated that before the accident he was sociable, regularly drinking in local pubs with friends and appearing content and in control of his finances.
The accident occurred on 7 March 2016 and was horrific. The claimant fell...
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Adam Harris (by his Litigation Friend Adnaan Mirza) v General Pharmaceutical Council
...claimant in making decisions in relation to the litigation. See Fox v Wiggins [2019] EWHC 2713 (QB) and King v Wright Roofing Co Ltd [2020] EWHC 2129 (QB). 12 The White Book commentary gives examples where the High Court has dealt with the question of capacity as a preliminary issue. One ......