Louise Ursula Watt v ABC (by his litigation friend DEF) The Official Solicitor (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Charles J |
| Judgment Date | 24 November 2016 |
| Neutral Citation | [2016] EWHC 2532 (COP) |
| Date | 24 November 2016 |
| Court | Court of Protection |
| Docket Number | 12679881 |
[2016] EWHC 2532 (COP)
IN THE COURT OF PROTECTION
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
IN THE MATTER OF ABC
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Charles
12679881
and
Barbara Rich (instructed by George Ide LLP) for the Applicant
Ruth Hughes (instructed by Foot Anstey LLP) for the Respondent
David Rees (instructed by the Official Solictor) for the Interested Party
Hearing date 6 July 2016
Judgment Approved
Introduction
This is a public document. The hearing was held in public pursuant to the Transparency Pilot and so a Pilot Order restricting reporting has been made.
As a result of a settlement of proceedings in the Queen's Bench Division (the QB Proceedings), which I approved, ABC was awarded substantial damages for personal injury (about £1.5 million) and this application to the Court of Protection (the COP) is a result of that settlement. It concerns whether the damages awarded should be paid to and administered by ABC's property and affairs deputy or should be held on trust.
To my mind this issue raises points of some general importance, namely:
i) in proceedings for damages for personal injury, namely how the award should be held and administered and so in those proceedings (a) what evidence and argument about this should be considered, and (b) what provisions should be made for and in respect of this management issue in the sums awarded and the order made. The matters to be considered could include issues relating to the Claimant's capacity to manage the award made as well as issues concerning how it should be managed if the Claimant lacks that capacity, and
ii) in respect of the approach taken by the COP having particular regard to the decision in SM v HM [2012] COPLR 187. As will appear later in my view that case was incorrectly interpreted and applied in the QB proceedings and on this application.
At the end of this judgment I list points that merit consideration in analogous cases.
Background history
The QB proceedings were listed before me because issues had been raised relating to both ABC's litigation capacity and his capacity to make decisions about the management of his property. By the time of the hearing it had become common ground that ABC lacked litigation capacity. I agreed.
However, there was still a dispute about ABC's capacity, or the extent of his capacity, to manage his financial affairs with appropriate support. These were not decided because the case settled but they were and are plainly relevant to both:
i) the jurisdiction of the COP, and
ii) whether the award should be held and managed by a deputy or on trust (and if so what the trusts should be).
The existence of potentially fine and difficult issues relating to what decisions ABC has and does not have capacity to make in connection with the management of his financial affairs is, for example, demonstrated by the following points:
i) In January 2015 ABC executed a revocable personal injury settlement (the "ABC January 2015 Settlement"). This was executed to receive interim payments of damages and to preserve ABC's entitlement to DWP benefits (it is no longer needed for the latter purpose). I am not clear how much of the interim payments totalling £142,000 were paid to respectively that trust and to ABC's deputy, who was appointed later.
ii) The attendance note at the time that trust was executed contains the following:
ABC confirmed that when the final award is received he would like to buy several buy to let properties as well as his own property (after selling his current home). —-
Finally, ABC asked whether Court of Protection will be needed if the trust is in place. [The solicitor advising] confirmed that there had been mention of ending the trust after settlement of the claim if Court of Protection is in place as this would have the same effect however this very much depends on whether there is a Court of Protection order and the medical evidence at the time. ABC said he would prefer the trust framework as this allows more flexibility but allows him to manage his own affairs outside the personal injury compensation.————————
iii) Notwithstanding the possibility of a COP order being made ABC must have executed the ABC January 2015 Settlement on the basis that it was thought he had the capacity to make the decision to do so.
iv) Within about 6 months ABC's deputy was appointed by the Court of Protection. The order doing that is dated 24 June 2015 and it contains a recital that the court was satisfied that ABC lacks capacity to make various decisions for himself in relation to a matter or matters concerning his property and affairs. But these matters are not identified in that order or in the evidence in support of the application for that order although it refers to the ABC January 2015 Settlement.
v) Passages I cite later (see paragraph 13 hereof) from the evidence in the QB proceedings pre-date this appointment and show that it was recognised on the ground that capacity and best interests issues arose in respect of the management of ABC's affairs in 2015.
vi) The evidence from the proposed deputy in support of the application for her appointment included passages to the effect that: (a) a Queen's Bench Master had requested that an application be made to the Court of Protection for a deputy to be appointed and this was the reason for the application, and (b) the Court of Protection was invited to proceed on the basis that the question of whether ABC lacks or continues to lack capacity be considered by a Court of Protection Judge at the final trial of the Queen's Bench proceedings.
vii) That evidence also included an Assessment of Capacity made in October 2013 by a psychiatrist. This was prepared because it was then anticipated that the deputy would make an application for appointment as ABCs deputy. No such application was made at that time and that assessment contains passages to the effect that in the view of that psychiatrist it is possible that with support and rehabilitation ABC may regain capacity to manage his own affairs, that his mental capacity needs to be kept under regular review and he would recommend formally reviewing ABC's capacity in two years (i.e. in 2015). A June 2014 report from the same psychiatrist was also exhibited to that evidence and that report is correctly described therein as a report that ABC lacks capacity to manage his property and affairs and is unlikely to regain capacity to do so in the future. That report contains the following passages:
Unfortunately, in my opinion ABC has made little progress and I have not seen any evidence that leads me to wish to alter the opinion I expressed previously.
In my opinion the matter nonetheless needs to be kept under appropriate review since there is a possibility that he may regain financial capacity and he is certainly likely to challenge any Court Order in the future.
In my opinion the balance of probability is however that ABC is unlikely to regain the mental capacity to manage his own affairs.
I did not investigate why, in the circumstances that existed in 2015 and were set out in the evidence in support of the application to appoint the deputy, either she or the authorised officer of the Court of Protection, who made the order, thought it was appropriate for that order to be made by an authorised officer. In my view, the difficulties and issues relating to capacity set out in the supporting evidence (and in the evidence in the QB proceedings) mean that it is troubling that an authorised officer made that order and the application should have been put before a judge of the COP. The COP should look at what happened to see what, if any, lessons can be learned to avoid a repetition in similar cases in the future.
However, any issue relating to:
i) ABC's capacity to make the ABC January 2015 Settlement is now water under the bridge because the small amount left in the settlement has been paid to his deputy as ABC's money, which through his absolute interest under that settlement has always been the case, and
ii) whether the COP should have made the order it did or an order in different terms appointing a deputy are now subsumed in the present application relating to the choice between a deputy and a trust if the COP has jurisdiction because ABC lacks relevant capacity.
Although the contested issues relating to the extent of ABC's capacity to make his own decisions with appropriate support on the management of his property and affairs were not determined in the QB proceedings the approach of ABC's litigation friend and the deputy on this application has been based on the premise or assumption that ABC lacked all relevant capacity and so effectively that their position in the QB proceedings on this issue was right and would be accepted by me now sitting in the COP. In my view that approach was not justified.
However, as appears later:
i) I agree and conclude that as a result of his brain injury ABC lacks the capacity to make decisions on the management and so investment and application of his substantial damages award and assets representing it from time to time and so the COP has jurisdiction.
ii) In my view, the medical and lay evidence that founds that conclusion also substantiates the common ground in the QB proceedings and on this application that with, and in some circumstances without, support ABC does have the capacity to make a number of decisions relating to his property and affairs and so, for example, his day to day expenditure from income.
In addition, it seemed and seems to me, leaving aside the jurisdictional issues, that parts of the lay evidence in the QB proceedings (read alone and with the medical evidence)...
To continue reading
Request your trial
-
OH (A minor by his Litigation Friend TA) v Susan Craven
...for personal injury trusts where the Court of Protection is not involved (and the possibility of their use even when it is: see Watt [2016] EWHC 2532 (CoP)). But their facilitation by the payment out of monies in the Court Funds Office at the request of a capable adult or their approval at ......
-
Hong Kong Court Holds That Trust Has More Advantages Than Gift For A Mentally Incapacitated Person
...to support its argument. CK's Guardian referred to dicta in certain English authorities (SM v HM [2011] EWHC B30 (COP) and Watt v ABC [2016] EWHC 2532 (COP), [2017] 4 WLR 24) which discussed the advantages of an outright The Court held that these dicta did not apply to the present case, as ......