Masterman-Lister v Brutton; Masterman-Lister v Jewell

JurisdictionEngland & Wales
JudgeLord Justice Kennedy,Lord Justice Potter,Lord Justice Chadwick,LORD JUSTICE CHADWICK,LORD JUSTICE POTTER,LORD JUSTICE KENNEDY
Judgment Date16 January 2003
Neutral Citation[2002] EWCA Civ 1889,[2003] EWCA Civ 70
Docket NumberCase Nos: A2/2002/0691 & 0692,A2/2002/0691
CourtCourt of Appeal (Civil Division)
Date16 January 2003
Martin Masterman-Lister
(1) Brutton & Co
(2) Jewell & Home Counties Dairies

[2002] EWCA Civ 1889


Lord Justice Kennedy

Lord Justice Potter and

Lord Justice Chadwick

Case Nos: A2/2002/0691 & 0692





Brian Langstaff QC, Patricia Hitchcock and Anna Beale (instructed by Stewarts) for the Appellant

Robin De Wilde QC and Nick Brown (instructed by Blake Lapthorn) for Brutton & Co

Richard Methuen QC and Hugh Hamill (instructed by Clarke Willmott & Clarke) for Jewell & Home Counties

Robert Francis QC represented the Official Solicitor as an Interested Party

Lord Justice Kennedy

This is an appeal by the claimant from a decision of Wright J in relation to a preliminary issue namely –

"Whether the claimant has been a patient within the meaning of RSC Order 80 and/or Part 21 of the CPR at any time since the 8 th September 1980 and, if so, what are the period or periods when the claimant has been a patient between the 8 th September 1980 to date."

On 29 th March 2000 Master Murray ordered the trial of that issue in relation to both of the claimant's actions, and after a lengthy hearing in January and February 2002 the judgment was delivered on 15 th March 2002.



For this section of my judgment I am indebted to the judgment of the trial judge. The claimant was born on 24 th July 1963, and on 9 th September 1980, when riding a motorcycle to his work as an engineering apprentice, he collided with a milk float driven by Mr Jewell, an employee of Home Counties Dairies. The claimant sustained very severe injuries, including a serious head injury. He was in hospital for over three months and when he returned to work in June 1981 he was only able to perform routine clerical work, which he continued to perform until March 1989 when he resigned. He has barely worked since that date.


The claimant's parents consulted a solicitor, Mr Wilks of Brutton and Co, soon after the accident, and on 24 th December 1980 proceedings were commenced against Mr Jewell and Home Counties Dairies. It took some time to gather together the medical reports and the information in relation to financial loss, so the Statement of Claim was not served until 7 th September 1985. The defence denied liability and alleged contributory negligence which counsel for the claimant had advised could be assessed as high as 50%. In October 1985 there was a payment into court, which was not accepted, but on 11 th September 1987 the payment into court was increased to £70,000. Two days previously the claimant, his father and his solicitor had attended a lengthy conference with his counsel in London. At that time counsel had valued the claim at £117,000 on full liability, and recommended serious consideration of any payment into court representing half of that sum.


Nevertheless the claimant was not happy with the offer of £70,000, and on 13 th September 1987 he wrote to Mr Wilks. As the judge said, the letter asked three relevant and sensible questions as to the effect of delaying an acceptance. The claimant's father said in evidence that the letter, although physically written by the claimant, was largely dictated to him by his father, and that seems to be borne out by the entry for that day in the claimant's diary, but the entry also says that he and his father "discussed all the possibilities of my court case" including "accepting their present offer or waiting a while".


On 15 th September 1987 there was a conference at the offices of Brutton and Co in Fareham attended by Mr Wilks, the claimant, both his parents, and Mr Boot, a financial director of the claimant's father's company and a family confidante. The payment into court was fully discussed. The attendance note of the solicitor records that the claimant, with the advice of his parents, instructed the solicitor to tell the other side that if a further £10,000 was paid into court the claimant would accept it. Mr Wilks did as instructed. The defendants' solicitors took instructions from their clients, and were authorised to pay a further £6000 provided there was acceptance within 24 hours. The claimant's father was telephoned and was, it seems, delighted. The claimant was markedly less enthusiastic but after considering the offer overnight he agreed to accept it, and the action was therefore settled for £76,000 and costs.


For a time the claimant remained at home but in 1992, three years after he had given up work, he used £55,000 of his capital to buy a house. There he lives alone relying for income on state benefits. It was common ground before the judge that because of his physical and mental disabilities he is very unlikely ever to be able to obtain worthwhile remunerative employment.


In late 1993 the claimant, having been told by Brutton and Co that his claim could not be re-opened, consulted his brother-in-law Mr Knowles, who is a solicitor, and on 17 th December 1993 a writ was issued against Brutton and Co for damages for negligence and/or breach of contract in relation to their conduct of his litigation. The Statement of Claim was not served until 21 st May 1996, and not surprisingly the defence which was served on 6 th February 1997 asserts that the claim is statute-barred.


In June 1997 the claimant was examined by Dr Martyn Rose, a consultant in neuropsychiatric rehabilitation. His view was and is that ever since the time of his accident the claimant has been a "patient", within the meaning of section 94(2) of the Mental Health Act 1983, that is to say a person who "is incapable by reason of mental disorder of managing and administering his property and affairs." The claimant then sought to re-open the settlement of his claim in the original proceedings on the basis that it has never received the approval of the court, as then required by RSC Order 80 Rule 10 (now CPR Part 21, Rule 10). Thus in March 2000 Master Murray ordered the trial of the same preliminary issue in relation to both actions.

RSC Order 80.


The present Civil Procedure Rules did not become effective until April 1999, so in this case we are primarily concerned with the previous provisions relating to litigants under a disability which were to be found in Order 80 of the Rules of the Supreme Court. Within that Order, Rule 1 read—

"In this Order –

'The Act' means the Mental Health Act 1983;

'Patient' means a person who by reason of mental disorder within the meaning of the Act, is incapable of managing and administering his property and affairs;

'Person under disability' means a person who is an infant or a patient.'"

Before I look more closely at that definition of a patient it is worth noting some of the consequences of being a patient. Rule 2(1) provides –

"A person under disability may not bring, or make a claim in any proceedings except by his next friend …."

Rule 2(3) provides –

"A next friend or guardian ad litem of a person under disability must act by a solicitor."

Rule 10 provides –

"Where in any proceedings money is claimed by or on behalf of a person under disability, no settlement, compromise, or payment and no acceptance of money paid into court, whenever entered into or made, shall so far as it relates to that person's claim be valid without the approval of the court."

The claimant was an infant when he began his action against Jewell and Home Counties Dairies in December 1980. That disability was recognised and his father agreed to act and did act as next friend, so the proceedings were properly instituted. On 24 th July 1981 the claimant reached the age of 18, and on 17 th August 1981 he served notice of adoption in relation to his action. At that stage it had not occurred to anyone that the claimant might still be under a disability because he might be a patient for the purposes of Order 80, Rule 1. At no time prior to 1987 did any doctor raise that possibility, although Professor McLellan now says that it was implicit in his reports of October 1984 and September 1997. The claimant's solicitor, Mr Wilks, was an experienced personal injuries lawyer, and the possibility did not occur to him; nor did it occur to Mr Walker, the experienced personal injuries counsel who was instructed, and Mr Langstaff QC, who has appeared for the claimant before us, has made it clear that the lawyers originally instructed are not now being criticised for failing to recognise that the claimant might be a patient. Nonetheless, Mr Langstaff contends, as it was contended by Mrs Cox QC, as she then was, in the court below that at all times from the accident onwards the claimant was a patient who could only litigate or continue to litigate by his next friend, and who could only settle a claim with the approval of the court.

What does the definition mean?


Mental disorder is defined in section 1(2) of the 1983 Act, and it seems to be common ground that if at any material time the claimant was incapable of managing and administering his property and affairs that was by reason of mental disorder within the meaning of the Act. So what is meant by being "incapable of managing or administering his property and affairs?" The same wording can be found in section 94(2) in Part VII of the 1983 Act which deals with the powers of the Court of Protection to manage the property and affairs of patients. Section 94(2) provides –

"The functions of the judge under this Part of this Act shall be exercised where, after considering medical evidence, he is satisfied that the person is incapable, by reason of mental disorder, of managing and...

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