Verlander v Rahman
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BURNETT |
| Judgment Date | 08 February 2011 |
| Neutral Citation | [2011] EWHC 822 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Claim No: TLQ/10/0438 |
| Date | 08 February 2011 |
[2011] EWHC 822 (QB)
Before: Mr Justice Burnett
Claim No: TLQ/10/0438
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR HILLIER appeared on behalf of the Claimant
MR BALDOCK appeared on behalf of the Defendant
Approved Judgment
Tuesday, 8th February, 2011
This is the trial of a preliminary issue to determine whether the claimant, Amy Verlander, has capacity to continue to conduct this litigation. If she does not have capacity, it is proposed that her mother, Patricia Verlander, should be appointed Amy's litigation friend. The question of capacity is to be judged by reference to the tests laid down in the Mental Capacity Act 2005.
The claimant, Amy Verlander, was born on 1 st January 1985. On 2 nd September 2006 she was crossing Burdett Road, Limehouse, when she was knocked down by a vehicle driven by the defendant. She sustained serious injury. There was a rupture of the left side of the diaphragm, multiple rib fractures with pneumothorax, together with fractures of the second cervical vertebra, left humerus, left sacroiliac joint and left wrist. But it was the closed head injury suffered by the claimant which has given rise to concern about her capacity to conduct this litigation.
These proceedings were issued on 25 th August 2009. Liability had never been in dispute and was formally conceded in the defence served on 18 th September 2009. Master Leslie entered judgment for the claimant on 15 th October and gave preliminary directions for the assessment of damages. At a case management conference on 15 th March 2010 directions were given for the exchange of expert evidence and other matters necessary to achieve a trial on damages. Amongst the directions given were these:
"(2) The Claimant to have permission to rely on expert evidence in the following fields from the following experts:
* Mr Osborne – Consultant Orthopaedic Surgeon
* Mr Sommerlad – Plastic Surgeon
* Dr Barrie – Neurologist
* Dr Leng – Neuropsychologist
* Professor Ron – Professor in Neuropsychiatry
* a General Surgeon (to deal with the chest and abdominal injuries)
* a Care Expert/Occupational Therapist.
(3) The Claimant serve any report she intends to rely on from a General Surgeon and/or Care Expert/Occupational Therapist by 30 th April 2010.
(4) The Defendant to have permission to rely on expert evidence in the field of neuropsychology and any other expert evidence in fields at paragraph 2 above…
(5) Experts in like fields to discuss and attempt to agree issues and serve statements…
(7) The Claimant to serve an updated schedule of all heads of loss and damage…
(8) The Defendant to serve a counter schedule, if so advised…"
In due course, a trial window was identified for this week. Expert evidence was obtained by both parties and exchanged pursuant to Master Leslie's order. The claimant has served a schedule, which I am told pleads the claim at about £1.7 million plus general damages. The service of a counter schedule is, as I understand it, on hold. We have seen from the order made by Master Leslie that the claimant's neuropsychiatrist is Professor Maria Ron, and Dr Nicholas Leng is her neuropsychologist. In due course, the defendant obtained evidence from Dr David Sumners, consultant psychiatrist, and Dr Nigel Walton, neuropsychologist. Those experts considered two aspects relating to the question of capacity. First, whether the claimant will be capable of managing her own financial affairs following receipt of a substantial sum, whether by lump sum, periodical payments, or both. All experts agree that, as a result of her impulsive nature, the claimant will be unable to manage her own financial affairs. Secondly, they also considered whether she is able to make decisions necessary for the future conduct of this litigation. A summary of those experts' opinions on that topic is this: by the narrowest of margins, Professor Ron believes Amy Verlander is not able to make those decisions. Dr Sumners, by a similar margin, believes that she is. Dr Walton is of the same view as Dr Sumners. Dr Leng has wavered in his view, as it appears to me from the reports. As he has acquired more information, he has come to the conclusion that the claimant may have a residual ability to deal with her legal affairs.
The claimant has conducted her own litigation hitherto with the substantial assistance of her mother, who is of the view that her daughter lacks the necessary capacity. The report of Professor Ron that expresses the view that the claimant lacks litigation capacity is dated 29 th April 2010. That is a supplementary report. Dr Sumners' report expressing the contrary view is dated 1 st October 2010. There is a short joint report from both experts of 3 rd November 2010.
The application to have the claimant declared a protected party was issued on 12 th July 2010. On 4 th August Master Leslie adjourned the application to a judge. On 17 th November the matter came before Macduff J for directions. He directed that the issue be resolved in a hearing this week. He gave permission for the parties to call Professor Ron and Dr Sumners to give oral evidence, and also to rely on the written evidence of Dr Leng and Dr Walton. The question of financial capacity, which as I have indicated is not in contention, is being dealt with by way of an application to the Court of Protection.
In addition to hearing from the two experts, Mrs Verlander has given oral evidence on this issue, having provided a short written statement in advance. The claimant herself did not give evidence. She did not produce a statement dealing with any issues relevant to capacity. I enquired of Mr Hillier, who appears for the claimant, how the application came to be made. He explains that because the issue had been raised in the expert evidence, those who instruct him were bound to ventilate the matter before the court. That said, Mr Hillier told me that the claimant was aware of the application and had not disagreed with it being made. The claimant was in fact in court throughout the whole of the evidence and the argument. Mr Baldock, who appears for the defendant, described the application as paradoxical, because technically the application is being made by and on the implicit instructions of the claimant when its purpose is to establish that she cannot give such instructions. However, Mr Hillier made clear that the claimant's position in this matter is one of acquiescence rather than positive instruction. For that reason, he and those who instruct him considered whether the Official Solicitor should be involved independently in these proceedings to protect the claimant's position. Their considered view was that such involvement was not necessary. I endorse that conclusion. Although not bound to do so, the defendant has taken a full part in the determination of this preliminary issue, both by deploying evidence and advancing argument. The evidence and arguments were directed towards supporting the proposition that, for the purposes of the 2005 Act, the claimant retains full capacity. All relevant issues have been fully ventilated, as it seems to me, in the course of the hearing. There is no danger that the claimant's interests have been in any way overlooked.
The law
The question of capacity is governed by the Mental Capacity Act 2005. Sections 2 and 3 provide as follows:
"2. People who lack capacity
E+W
(1)For the purposes of this Act, a person lacks capacity in relation to a matter if 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.
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack of capacity cannot be established merely by reference to—
(a) a person's age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.
(5) No power which a person ("D") may exercise under this Act—
(a) in relation to a person who lacks capacity, or
(b) where D reasonably thinks that a person lacks capacity,
is exercisable in relation to a person under 16.
(6) …
Inability to make decisions
E+W
(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable—
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of—
(a) deciding one way or another, or
(b) failing to make the decision."
Section 1 of the 2005 Act identifies a number of principles which apply for the purposes...
To continue reading
Request your trial
-
Kevin King (a protected party by his litigation friend Susan Rummey) v The Wright Roofing Company Ltd
...materially between now and the trial next year. 19 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, ......
-
Adam Harris (by his Litigation Friend Adnaan Mirza) v General Pharmaceutical Council
...Book commentary gives examples where the High Court has dealt with the question of capacity as a preliminary issue. One is V v R [2011] EWHC 822 (QB). Another is King, to which I have just referred. It describes (at p.723) the practice whereby “the Court should at the first convenient oppo......