Should a property and affairs deputy disclose the amount of a compensation award to P?

On receipt of a significant compensation award on behalf of a Protected Party (P), it may be necessary for a property and affairs deputy to consider whether they should disclose the amount of the award to P.

Disclosure can put the deputy in a difficult position. On the one hand, P has a legal right to know the level of the damages. On the other hand, disclosure could be detrimental to P. For example, if P has knowledge of the level of the award, they may have grandiose ideas about how the money should be spent. If the deputy refuses to meet unreasonable spending requests, or is seen to be withholding information, it may impact on the working relationship with P.  P might even choose to disengage with rehabilitation and their wider team in an attempt to “save money” and they may lack insight to understand that the funds need to be sustained to cover the cost of long-term care and support.

The issue was brought, for the first time, before Justice Foskett of the High Court in the case of EXB (a protected party by his mother and litigation friend) v FDZ and others [2018] EWHC 3456 (QB). The judgment was considered by my colleague earlier this year and can be found here:

In EXB, P suffered severe injuries including a brain injury as a result of a road traffic accident. This left him with significant deficits in his executive and cognitive functioning to the extent that he was deemed to lack capacity to manage his finances.

Foskett J gave careful consideration to both the best interest principles set out in s4 of the Mental Capacity Act 2005 (MCA) and Article 3 of UN Convention on the Rights of Persons with Disabilities (CRPD).  Foskett J held that ordinarily, a person in Ps position should be informed of the details of a settlement award because this would be to treat him in the same way as a person without a disability.

Significant evidence was put forward by the deputy, litigation friend and, in particular the Neuropsychologist. The evidence illustrated P’s lack of insight into the purpose of the award, his difficulty in managing even the smallest of sums, his impulsive behaviour and, his vulnerability to exploitation by his ‘associates’. The Court also heard from P, who ultimately agreed that he should not know.

Foskett J concluded that P lacked capacity to make a decision as to whether or not he should know the settlement figure and therefore it was not in his best interest to be told.  The Court directed that it would be unlawful for any individual with knowledge of the settlement figure to inform P. This was helpful on a practical level, as the decision was taken out of the deputy’s hands and he could therefore, if asked, inform P that the decision to disclose lay with the Court. As a result of which, the deputy’s and P’s relationship could be preserved.

More recently, the issue came before Justice Pushpinder Saini of the High Court, in the case of DXW (By his mother and litigation friend, MXC) [2019] EWHC 2579 (QB).

In DWX, P had sustained a serious brain injury whilst at work which again seriously affected his executive and cognitive functioning. Evidence was put forward to suggest that P lacked sufficient insight to understand the purpose of the award and the importance of keeping it confidential. As such, it was argued to have knowledge of the award would leave him at risk of significant harm and exploitation.

The case of DWX differed to EXB in that P was not informed of the application itself and therefore his views could not be presented to the Court. It was argued that to even have knowledge of the application, would cause him confusion and upset, and there was a real risk that it would impact on his engagement and therefore rehabilitation, which had so far been challenging.

Pushpinder Saini J accepted the evidence and it was ordered that it was not in P’s best interest to be informed of the application or to have knowledge of the settlement amount. P had been awarded a significant sum. It is noted that the level of the award was subsequently disclosed in the judgment – which appears somewhat contradictory. In EXB it was deliberately kept confidential.

However, Pushpinder Saini J made it very clear, that depriving P of knowledge of the size of his award clearly constituted an interference with his basic legal rights and that evidence of ‘real necessity’ would be required if an order was to be made. He also made clear that the even where P lacked capacity his views were relevant and must be obtained on the issue as far as is reasonably practical.

Whilst deputies and litigators should consider whether such an application is required for a particular individual on settlement, the Court is not inviting such applications to be made as a matter of course.  Therefore, any such application must be carefully considered before it is brought before the Court with the applicant ensuring that the evidence for concealment is precisely declared in the Court papers.

When dealing with quantification of a claim, litigation teams should also ensure their expert evidence on professional deputyship costs considers and includes the costs of such an application where necessary. This is as per the judgement of EXB whereby the defendants were ordered to cover costs.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*