NOT TELLING THE CLAIMANT THE AMOUNT OF HIS DAMAGES: JUDICIAL APPROVAL OBTAINED

In EXB v FDZ & Ors [2018] EWHC 3456 (QB) Mr Justice Foskett had to consider the approach of the court when it was felt to in the claimant’s best interests not to be told of the size of his award of damages for personal injury.

THE CASE

The claimant was badly injured in a car accident.  He suffered a head injury and was a protected party. Once settlement was reached it was felt in his best interests for him not to know of the amount of the award.

THE JUDGMENT

The judge accepted the evidence that it was not in the claimant’s best interests to know of the size of the award.  The claimant was at the risk of exploitation.  Knowing the sum would exacerbate his existing difficulties with money.

  1. It will come as no surprise that the evidence that it would not be in the Claimant’s best interests to know the amount of the award is overwhelming, certainly as the evidence stands at the moment. Concerns over the dissipation of the fund designed to fund his lifetime’s needs is one consideration of importance, as is his inability fully to understand the value of money and the frustrations (leading to confrontations) to which this gives rise. As I have said, unless his condition changes significantly (which, on the evidence, is unlikely), it is likely that this will remain the position permanently. Nonetheless, as I have also said, his condition needs to be kept under periodic review for this purpose.
  2. The primary question, however, is whether I can conclude, on the balance of probabilities, that the Claimant cannot make for himself the decision about whether he should be told the value of the award. As Ms Butler-Cole says, this is difficult in the present case because “by definition, the Claimant cannot be presented with the information relevant to the decision in order to assess his capacity, as that would make the entire exercise redundant.” Nonetheless, the Claimant has expressed his views on the matter without the exact figure being known to him and there is evidence (particularly in his comment after he left the videoconference room after giving his evidence) that his ability to make this decision is variable and that he could not necessarily sustain over any meaningful period the making of such a decision given his inability to control his impulses and weigh up all the relevant considerations.
  3. In those circumstances a declaration as to incapacity in relation to this specific decision is justified.

THE COSTS OF THE APPLICATION

Although this was an unusual application the judge held that it was appropriate for the defendants in the action to pay those costs.
  1. The Claimant seeks the costs of this particular exercise against the Third and Fourth Defendants, contending that it is their tort that has necessitated it. It is accepted that it would have been preferable for the question of whether an order of this nature should be made to be finalised on the day of the approval hearing (as to which see further below), but this was a novel litigation event and required handling correctly with a consequent postponement of the decision on the issue.
  2. Objection is taken to paying the costs of the exercise by the Third and Fourth Defendants. They have been provided with the opportunity to comment on the application and I have seen a detailed response on their behalf from Messrs Keoghs LLP. In summary, it is said that they should not be responsible for the costs because all issues between them and the Claimant were concluded by the settlement approved in April this year and that this particular issue is a “solicitor/own client” issue that should not be laid at the door of the tortfeasor. It is also contended that this principle would apply whenever the issue of the Claimant’s incapacity to make the relevant decision had arisen. Attention is drawn to the fact that no claim for the costs attributable to this issue was made in the Schedule of Loss and to the proposition that the acceptance or conferment of liability for costs on the Third and Fourth Defendants might lead to an open-ended commitment to pay the costs associated with repeat applications.
  3. Ms Butler-Cole has helpfully reminded me that, since the issue has been dealt with under the CoP jurisdiction, the CoP rules concerning costs apply. These provide, as a general rule, that where the issues concern financial matters, the costs of all parties come out of the protected party’s estate (rule 19.2). In welfare cases, the general rule is that each party bears his own costs. The court has a broad discretion to depart from the general rules if the circumstances make a different order appropriate (rule 19.5). In this case, the Third and Fourth Defendants have not been made formal parties to this application, but have, of course, had the opportunity to make representations about the costs order sought. In those circumstances, an order dispensing with the need to make them parties could be made or, alternatively, the order could recite that they are to be treated as having been made parties.
  4. The application for costs made on behalf of the Claimant relates only to the costs associated with the application seeking the declarations I propose making. It does not seek costs of future applications. If provision for future applications is to be sought, it seems to me that there would need to be evidence about the likely frequency and the proposed paying party would need to be able to respond to it. That is more conveniently dealt with as a head (or part of a head) of damage and claimed as such. It could well be said that claiming the costs of an application such as the one before me ought to be included as part of the damages claim and indeed there would be every reason to do so if the need to make it had been identified at an early stage. That, however, was not so in this case and, for my part, I do not see that there is any objection to making the claim in this case as an application for costs in the CoP proceedings. The general issue was flagged up before the approval hearing took place and I have not been shown any correspondence or other documentation that demonstrates that the costs of this issue was included in the settlement. This is different from saying that there might be cases where the that was clearly what had occurred.
  5. The more important question is whether, in principle, such a liability should be laid at the door of the tortfeasor. In my judgment, the need to make such an application arises directly out of the injury caused by the tortfeasor and I can see no principled basis for denying liability for the costs of the exercise, whether the claim for costs is sought as a head of damage or by way of an application for costs.”