Unusual Granting of an Order to Prevent the Protected Party from knowing the full details of his Personal Injury Settlement following an application made by his Professional Deputy.

In this personal injury case, the judge had to grapple with an unexpected question – should a Deputy, appointed to manage the personal injury payment made to a brain-injured claimant, be allowed to not tell the claimant the exact amount that was awarded to him?

The case of EXB v FDZ

The case of EXB v FDZ (2018) was very unusual in that it involved an application by the Protected Party’s professional Deputy, and his mother as Litigation Friend, to prevent the Protected Party from knowing the full details of his personal injury settlement, which was deemed to be in his best interests.

This was a complex matter, as the Court recognised that withholding such information inadvertently affected the Protected Party’s rights. Judge Foskett explained in his judgement that he had never come across this issue before and he called upon assistance from Ms. Butler-Cole as a ‘friend of the Court’.

The Protected Party

The Protected Party sustained orthopaedic injuries, alongside a severe brain injury following a road traffic accident. The Protected Party was a backseat passenger in a car driven by the First Defendant. The Protected Party was not wearing a seatbelt and his damages were reduced accordingly, following an admission of contributory negligence.

Why was it in the best interests of the Protected Party to withhold settlement info?

The applicants submitted evidence from both themselves and professionals which detailed the reasons as to why it was in the Protected Party’s best interests to withhold the settlement information.

The Protected Party’s neuropsychologist stated that “Such knowledge would translate and impact upon his behaviour”. It was believed that the Protected Party would become fixated by the sum of money, that it would lead to him being extremely vulnerable and placed into a situation where he was likely to be financially exploited. Interestingly, the Protected Party himself expressed to his Deputy and the Court that he would be better off not knowing the sum; however, he also stated that he was conned into making such a statement. Following the accident, the Protected Party was very impulsive, and he often became very anxious when it came to money, struggling to budget and often living beyond his means.

The Judge gave careful consideration to the evidence submitted, as well as reviewing the relevant legislation, such as the Mental Capacity Act 2005 and the UN Convention on the Rights of Persons with Disabilities (CRPD). Following this, the Judge held that the Protected Party lacked the relevant decision-making capacity, finding that it was in the Protected Party’s best interests not to be told the value of the reward. The Judge also considered whether it was within the scope of a normal Deputy Order not to reveal the sum; however, the Deputy argued that it would make the Deputy’s life more difficult if the Protected Party believed that he was personally withholding the information and it was considered more appropriate for the Deputy to state that the Court prevented him from doing so.

Costs of the application

The next issue that arose was in respect of the costs of the application. The Claimant sought the costs of the application to be paid by the Third and Fourth Defendants of the Personal Injury claim, as their tort had necessitated. The Third and Fourth Defendants objected to paying the costs. Their defence stated that “they should not be responsible for the costs because all of the issues between them and the Claimant were concluded by the Settlement which was approved in April 2018” and that this particular issue was a ‘solicitor/own client’ dispute. Within the remit of the initial Personal Injury claim, there was no claim for costs attributable to this issue within the Schedule of Loss and there was also the fear that there may be an “open-ended commitment to pay the costs associated with any repeat applications”.

As the issue had been dealt with under the Court of Protection, it was necessary to apply the Court of Protection costs rules. The general rule being that where the issue concerns financial matters, the costs of all parties are to be borne from the Protected Party’s estate (Rule 19.2). The Court does have a broad discretion to depart from the general rule, if circumstances made a different order more appropriate (Rule 19.5). In this case, the Third and Fourth Defendants had not been made formal parties to the application, but they had been provided with an opportunity to make representations regarding the Costs Order being sought.

Judge Foskett held that the costs were to be borne by the relevant Defendants, as the need to make the application arose directly from their actions following the injury caused to the Protected Party, therefore departing from the general rule.

It will be interesting to see whether there will be any similar applications and what the outcomes will be. The Judge has invited the appropriate bodies to consider these matters and decide whether a consultation on this issue will be required.

This blog was prepared by Danielle Walker who is a Costs Lawyer within the Court of Protection Team. Danielle can be contacted at Danielle.walker@clarionsolicitors.com

 

 

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Can a family member or care worker be appointed as a Representative or Litigation Friend if they are partly responsible for constituting a Deprivation of Liberty?

SCC v MSA & Another (2017) EWCOP 18

This case looked at the issues of where a Protected Party’s mother should act as his Rule 3A representative, in light of the fact that she was the person responsible for implementing a restrictive care regime that constituted a deprivation of liberty.

Background

The SCCG commissioned a care package to MSA who was a young adult with severe learning disabilities and was deprived of his liberty at his family home. The Court had previously authorised that it was in MSA’s best interests to reside at home and receive the  care package. MSA was recorded as;

“unable to communicate or mobilise independently, is frequently strapped into his wheelchair, is kept for some of the time in a padded room at his home with a closed door that he cannot open, is highly resistive to personal care interventions so that physical restraint is required, and does not have external carers in the home.”

The issue that arose during the proceedings, was whether MSA’s mother, JA could or should act as his 3A Representative. The Official Solicitor (OS) submitted at a hearing on 23 March 2017, that it would be inappropriate for MSA’s representative in these proceedings and any future proceedings to be the person responsible for implementing a restrictive care regime that constituted a deprivation of liberty, where the arrangements surpassed 24 hour supervision.

Written submissions were filed by both parties and the Court agreed to consider the appropriateness of JA acting as his litigation friend. It is worth noting here, that JA did not wish to be appointed, the OS had raised the issue and guidance on the matter was sought.

Court of Protection Rules 2007

Rule 3A, requires the Court to consider in each case how best to ensure the Protected Party’s participation in proceedings was assured.

Rule 3A(2)(c) ” P’s participation should be secured by the appointment of a representative whose function shall provide the Court with information as to the matters set out in s4(6) of the Act and discharge functions as the Court may direct.

Rule 147 states “A person may act as an accredited legal representative or representative for P, if that person can fairly and competently discharge his or her functions on behalf of P.”

Rule 148B provides the Court with the power to prevent a person from acting  or terminate an appointment of a person as a litigation friend

Rule 140(1) states that a person may act as a litigation friend for P if that person,

  1. A) fairly and competently conduct proceedings on behalf of that person, and
  2. B) has no interests adverse to those of that person

The OS stated that it would not be appropriate to appoint a family member who who supported the deprivation of the Protected Party’s liberty as being in his best interests, as it would be difficult for them to challenge the deprivation due to a conflict of interest. Especially in this case, as the Protected Party was locked in a padded room at times and had to be physically restrained in a wheelchair.

The CCG argued that JA could undertake the role as she was engaged with statutory services and care providers and had a history of acting as the Protected Party’s advocate. They also stated, that there was no rule which prohibited a family member from acting.

District Judge Bellamy stated the following would need to be considered;

  1. a) Whether or not a family member or friend who is responsible in part for implementing a restrictive care arrangement is appropriate to be representative or litigation friend is fact and case specific
  2. b)The Court will have close regard to the relationship between the family member and the Protected Party
  3. c)The conduct, if any of the family member and any available evidence that he or she has acted otherwise in accordance with Rule 140(1) or Rule 147
  4. d)The Court must consider the nature of the restrictive care package and the role that the family member would play in the regime

An agreement with the OS in terms of where a family member is responsible for providing care that includes restrictive physical interventions, the Court should take great care in exercising its discretion as regard to the Protected Party’s representation in proceedings pursuant to Rule 3A. However, it would go no further than that and if a family member who was so involved put themselves forward to act as a representative or litigation friend, providing that all circumstances were scrutinised, there could be no blanket objection in principle, to undertake the role.

The Court must be satisfied that the representative can,

1.i) Elicit P’s wishes and feelings in accordance with s4(6) of the MCA known to the Court without causing any unnecessary distress to the Protected Party

2. ii) Critically examine from the Protected Party’s perspective their best interests, the pros and cons of the care package and whether it was the least restrictive option

3.iii) Review the implementation of the care package

Therefore, it was determined that providing the Protected Party’s Rights under Article 5 were adequately protected and the Court were satisfied, the role could be undertaken by a family member. In my opinion, this appears reasonable, as the family member may actually be the best person to represent the Protected Party as they have a personal connection and will more often than not understand from the Protected Party’s point of view as to what would be in their best interests.

In this case, as JA did not want to act as litigation friend, the OS would continue with the appointment.

If you require any further information, please contact; Danielle.walker@clarionsolicitors.com

 

CH (By his Litigation Friend the Official Solicitor) and a Metropolitan Council (2017)

An application was made on behalf of the claimant for approval of a proposed settlement of his claim against the Local Authority. The claim originated following proceedings that were issued in the Court of Protection and a claim for damages pursuant to the Human Rights Act 1998 (HRA 1998). A Part 8 claim was brought under the Civil Procedure Rules, pursuant to the decision in Luton v SW (2017).

CPR 21.10, stipulates where a party is a Protected Party, the Court must approve any proposed settlement. CH was identified as a Protected Party and a declaration had been made that he lacked the capacity to litigate. The Court of Protection itself, does not make specific provisions for approving a settlement, however the Court has the power to do so, as  explained by Charles J in YA (F) v A Local Authority (2010).

Facts of the Case
The Protected Party was was 38 years of age and was born with Downs Syndrome and had associated learning difficulties. He married WH in 2010 and they lived together in his parents home. They enjoyed normal conjugal relations until 27 May 2015.

The Protected Party and his wife, WH sought fertility treatment as they wanted to start a family. The Local Authority had a duty towards the Protected Party, and in late 2014 he was assessed by a Consultant Psychologist who determined that he lacked the capacity to consent to sexual relationships. The Protected Party and WH were informed by a letter, dated 27 March 2015. The letter stated that WH was to abstain from sexual relations with the Protected Party due to his apparent lack of capacity to consent and if not adhered to, relations would amount to a serious criminal offence under the Sexual Offences Act 2003. WH was also informed that if she failed to comply, safeguarding measures would be implemented and one of the parties would be removed from the home.

The parties complied and WH moved into a separate bedroom and any physical contact with the Protected Party ceased, which obviously had a detrimental affect upon the Protected Party himself, as he could not fully comprehend the reason for his wife’s actions.

The Consultant Psychologist stated that the Protected Party required a sex education course to help him achieve the necessary capacity. This advice was in line with Section 3 of the Mental Capacity Act 2005 which provides “a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.” The Local Authority failed to implement that advice, despite numerous requests to do so and having received protracted correspondence.

The Protected Party’s sister, SH acting as his Litigation Friend initiated proceedings in the Court of Protection in February 2016. It required an Order of the Court to implement the original psychological advice, following which the relevant course began on 27 June 2016. It was reported that the Protected Party had made sufficient progress in all areas, however further sex education was required, which was undertaken in Early 2017. On 19 March 2017, the Psychologist stated in writing that the Protected Party now had the required capacity to consent to sexual relations. The Local Authority thereafter accepted this decision.

A letter before action was sent to the Local Authority on behalf of the Protected Party, in compliance with the guidance set out in the case of H v Northamptonshire CC (2017). The Local Authority are a public body and are subject to sections 6 and 8 of the Human Rights Act 1998. Section 6(1) provides that “it is unlawful for a public authority to act in a way which is incompatible with a convention right.” Article 8 also states that ” everyone has the right to respect private and family life, his home and his correspondence.”

Breaches
The issues identified were the delay in implementing the advised programmes of education. This stemmed from 27 March 2015 when conjugal relations were required to cease, to the start of the first sexual education programme on 27 June 2016. The Local Authority did not contest the same.

Remedy
The remedy lies in damages governed by Section 8 of the HRA 1998. Section 8(3) states where an “award is necessary to afford justification to the person in whose favour it is made.” Where an award is made, the Court must under section 8(4), “take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.

The Defendant offered;
(1) to make a formal apology for the delays
(2) to pay the Protected Party damages in the sum of £10,000 as a result of the delay
(3) to pay the Protected Party’s pre-action costs in the sum of £7,395 (inclusive of VAT)
(4) to pay the Protected Party’s costs of the Part 8 application and seeking approvals of the Court for the settlement.

Considerations
WH had also pursued her own claim under the HRA 1998 and the claim had settled for an undisclosed amount. The Local Authority had also agreed to pay the Protected Party’s costs of the Court of Protection Proceedings which totalled £21,600 (inclusive of VAT). It was imperative  that this information was noted so as to ensure that there was no recouping of costs against damages under Section 25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, (LASPO).

Quantum
The Judge considered the appropriate quantum of damages for the Protected Party’s deprivation of his normal conjugal relations with his wife for a period of at least 12 months.  It transpired that there were no exact comparators in any reported case in England and Wales either in Tort law or under the Convention relevant to compulsory cessation of conjugal relationships.

Judge Hedley concluded that the proposed settlement was in the best interests of the Protected Party and reflected a fair outcome to the proceedings. As no Deputy was appointed for property and affairs, it was agreed that the monies would be paid into a Court Funds Office Account. The Judge also allowed for an additional £2,000 to be paid immediately to allow for the installation of an en-suite bathroom to the Protected Party’s matrimonial bedroom.

The intrusion was essentially lawful and had been properly motivated as a safeguarding measure, however the delays had led to proceedings being issued and unnecessary costs of litigation.It does however, highlight that vulnerable people with disabilities are entitled to be protected under Article 8 of the Human Rights Act, in the same way as any other member of society.

This blog was prepared by Danielle Walker who is a Costs Lawyer and Associate at Clarion Solicitors. Danielle specialises in Court of Protection Costs. Danielle can be contacted on 0113 222 3213 or at danielle.walker@clarionsolicitors.com.

 

 

 

 

 

 

 

 

 

Case Management in the Court of Protection

A case management pilot scheme will commence in June 2016. In light of this a pilot Practice Direction has been published in order to allow for practitioners to prepare for the changes ahead.

The Pilot Practice Direction will place an obligation on all applicants to provide improved analysis of any issues at the start of a case which in turn will lead to more vigorous decisions being made against all the issues that could be identified at the earliest opportunity. It is hoped that this will help to encourage cases to be resolved within the early stages and also reduce lengthy hearings in contested cases. The length of the pilot is expected to run for up to 12 months.

The pilot scheme sets out three case management pathways for CoP proceedings:

  1. a Property and Affairs pathway,
  2. a Health and Welfare pathway, and
  3. a hybrid pathway for cases that have elements of both Property and Health.

Please note that there could be possible amendments to the draft before the pilot actually commences in order to take account of any observations made on it or for other reasons.

An interesting point to consider is that the Courts may direct any party to file and serve an estimate of costs pursuant to Practice Direction 3.1 (l) of the case management pilot scheme, supplementing the Court of Protection Rules 2007.

If you require any further information please contact the COP costs team on 0113 246 0622 or email copcosts@clarionsolicitors.com.

 

Costs after Death in the Court of Protection

The Deputy’s authority to recover their costs after the Protected Party’s death can be a grey area. In some cases, the Deputy will have authority to subject their costs to detailed assessment however in most incidents the Protected Party’s estate will be in probate whereby the Deputy’s costs will be agreed with the Executors of the estate.

Rule 165 under Part 19 (Costs) to the Court of Protection Rules 2007 states that the Deputy’s costs can be remunerated where “an order or direction that costs incurred during the Protected Party’s lifetime be paid out of or charged on his estate may be made within 6 years after the Protected Party’s death.” If there is no Order as to costs then the Deputy cannot be remunerated through detailed assessment.

When the Protected Party’s estate is dealt with by the Executors, two approaches can be adopted. If the Executors do not contest the Deputy’s costs, the Deputy will be invited to raise a final invoice which will then be settled from the Protected Party’s funds once the Grant of Probate has been drawn. Where the Deputy’s costs are disputed, the Executors can elect for the Deputy’s costs to be subject to detailed assessment.

In either of the above situations, the Deputy’s authority to administrate the Protected Party’s affairs will be discharged on the Protected Party’s death unless an Order is made to extend the Deputy’s powers.

If you require any further advice or assistance in relation to your Court of Protection costs, please do not hesitate to contact the Clarion Costs Team on COPCosts@clarionsolicitors.com or 0113 246 0622.

Welfare Costs within the Court of Protection

Rule 157 of the Court of Protection Rules 2007 states that “where the proceedings concern P’s personal welfare, the general rule is that there will be no order as to costs of the proceedings or that part of the proceedings that concerns P’s personal welfare”. Please note however there are exceptions to this rule.

If the general rule is applied, each party involved in Court of Protection proceedings which concern the P’s personal welfare are liable for their own costs. On the other hand, Rule 159 states that in some circumstances, the Court may depart from the general rule. Before an Order can be made, the Court of Protection will take into account these variables:

  • the conduct of the parties;
  • whether the party has succeeded on part of their case, even if they have not been wholly successful; and
  • the role of any public body involved in the proceedings.

In terms of the conduct of the parties, the Court of Protection will consider:

  • conduct before and during the court proceedings;
  • whether it was reasonable for a party to raise, pursue or contest a particular issue;
  • the manner in which a party has made or responded to an application or a particular issue;
  • whether a party who has succeeded in their application or their response to an application exaggerated any matter contained in the application or response.

It is important to note that even if one or more of the above variables are applicable to a case, the parties should not expect the Court to make an Order and therefore they should be able to bear their own costs.

Welfare Deputies

Deputies can be appointed to make decisions in respect of P’s personal welfare however these are only applicable to extreme cases. Paragraph 8.38 of the Code of Practice states that a “Deputy for personal welfare decisions will only be required in the most difficult cases where important necessary actions cannot be carried out without the Court’s authority, or there is no other way of settling the matter in the best interests of the person who lacks the capacity to make particular welfare decisions”.

Before a Welfare Deputy is appointed, the Court will consider the evidence and make decisions in relation to the following:

  • Deciding where P should reside;
  • Deciding what contact, if any, P should have with any specified person;
  • Making an Order prohibiting a named person from having contact with P;
  • Giving or refusing consent to the carrying out or continuation of a treatment by a person providing healthcare for P;
  • Giving a direction that a person responsible for P’s healthcare allows a different person to take over that responsibility;
  • Deciding whether P has the capacity to marry and the capacity to have sexual relations.

Where a Welfare Deputy is appointed, they are entitled to recover their costs from P’s estate on the basis that there is provision to do so within the Order. Practice Direction B (Part 19) to the Court of Protection Rules 2007 states “where the Court appoints a professional Deputy for personal welfare, the Deputy may take an annual management fee not exceeding 2.5% of P’s net assets on the anniversary of the Court Order appointing the professional as Deputy for personal up to a maximum of £500”.

If you require any further advice or assistance in relation to your Court of Protection costs, please do not hesitate to contact the Clarion COP Costs team on COPCosts@clarionsolicitors.com or 0113 246 0622.