CLAIMANT SHOULD HAVE BEEN GIVEN PERMISSION TO RELY ON EXPERT EVIDENCE ON DEPUTYSHIP AND COURT OF PROTECTION COSTS: SUCCESSFUL APPEAL TO THE HIGH COURT

I am grateful to Daniel Slade from Express Solicitors for sending me a copy of the decision of Mr Justice Soole in AAA -v- BBB [2022] EWHC 3103 (KB). It is a case where the claimant was successful in appealing a decision that he was not given permission to rely on a report from an expert on deputyship and Court of Protection costs. 

THE CASE

The claimant brings an action for damages for personal injury.  At a directions hearing he applied for permission to call an expert on the cost of deputyship issues.  The claimant has capacity to litigate but not in relation to property and affairs, he is to be treated as a protected beneficiary.    The claimant’s schedule for future costs of deputyship and Court of Protection costs amounted to £2.25 million.  The defendant’s counter-schedule put these at £362,000 and argued there should be a nil award for deputyship costs.

THE DECISION OF THE MASTER

The Master gave the defendant permission to rely on the report of an expert in deputyship and Court of Protection costs.  However it was held that the claimant could rely on the evidence of the actual case manager and the professional deputy appointed by the Court of Protection.

THE  CLAIMANT’S SUCCESSFUL APPEAL

The defendant respondents took a neutral stance in relation to the appeal.   Mr Justice Soole allowed the appeal.  He held that this head of damages was a major element of the case. The issue either required expert evidence or it did not.   Allowing the defendant to call expert evidence when the claimant could not adduce evidence in response.

THE JUDGMENT ON APPEAL

The judge considered the issues, including the very high burden on a party seeking to overturn a case management decision. However the inequality of the result meant that the appeal was allowed and the claimant given permission to rely on expert evidence.

17 In considering this appeal I have firmly in mind the high threshold for a successful appeal against a judicial case management decision; and in doing so bear particular respect for the huge and daily experience of Master Cook in this specialist field. Pursuant to the case law on appeals against case management decisions, I remind myself that it is not enough for the appellate court to be satisfied merely that it would itself have made a different decision if sitting at first instance.

18 However I am persuaded that this decision did fall outside the generous ambit of the Master’s discretion and wrong. In my judgment there were realistically only two options before the Master. The first was to conclude that the evidence of the appointed deputy was of such strength because of her professional expertise and the supervision of the Court of Protection that expert opinion evidence was not reasonably required within the meaning of CPR 35.1. The second option was to conclude that such expert was reasonably required; but, if so, that the parties should each be entitled to rely on such evidence. In my judgment and with respect, there was – at least in this case – no third option or middle way which allowed the Respondent alone to rely on expert evidence.

19 For the reasons essentially advanced by the Appellant here and below this latter solution placed the parties on an unequal footing and did so in respect of one of the largest quantum issues in the action. In my judgment it was no answer that the Appellant could rely on the evidence of the appointed deputy Ms Bennett. If that evidence was not so strong as to make independent expert challenge unrealistic, then the Court should have been allowed to meet that challenge with the evidence of an independent expert. I do not think it fanciful that submissions might be made by the Respondents at trial to the effect that the Court should give greater weight to the opinion evidence of the only independent expert than to the factual evidence of the appointed deputy; nor fanciful that such submissions might attract the Court.

20 As to the practice of the courts, the Respondents have cited a prominent and relevant example where independent expert evidence on deputyship costs was received on behalf of each party: Robshaw. In my judgment each case must be assessed on its individual merits, without being bound to any particular standing practice. I am also persuaded that the Master did not truly exercise a discretion on the particular facts of this case.

21 Whilst fully understanding and respecting the Master’s wish to guard against the undue proliferation and cost of expert evidence, in the present case I conclude that the only appropriate order is to allow [Mr AAA] to rely on the evidence of Mrs Bunting. I emphasise that my decision is based on the particular facts and circumstances of this case.

22 I will now hear Counsel on the tight timetable which will be necessary for joint discussions and a joint statement in the short period until commencement of the trial on 31 October.