Saulle (by his sister & Litigation Friend GS) v Nouvet [2007] EWHC 2902 (QB)

This case concerned the determination of 2 issues by the High Court; firstly, whether the claimant was a protected party within the meaning of CPR 21.1(d) and if he was a protected party, whether he was also a protected beneficiary.  In other words a protected party who “lacks capacity to manage and control any money recovered by him or on his behalf or for his benefit in the proceedings.”

The claimant S, was a young man who had a promising career and who sustained a severe brain injury in a road traffic accident.   It was anticipated that S would receive a large award of damages and that the money recovered by him would be substantial.   Seven experts provided reports to the court to offer an opinion on capacity.  All bar one expressed the opinion that he did have capacity on the issue in question i.e. to litigate his case.  Where no-one was asserting lack of capacity to litigate, the court observed that there could be role for the Official Solicitor (OS) and it was incumbent on it to consider whether this was necessary or not.  In this case the judge considered that this was unnecessary as there was no-one urging a finding of incapacity on the part of the claimant.  The involvement of the OS would not in his view have added anything to the case.  Lindsay v Wood followed. 

The court considered the statutory test for capacity in the Mental Capacity Act 2005 and common law test in Masterman–Lister v Brutton & Co, for determining the claimant’s capacity to litigate. It found that the Code of Practice to the MCA on this issue was misleading by suggesting that judges were free to adopt the statutory definition if it was appropriate.  Since Part 21 CPR came into force in 2007 judges were required to adopt the new definition in deciding whether a person was a protected party or a protected beneficiary.

It was common ground that S had difficulties processing information which gave rise to aberrant behaviour though he did have an insight into his condition.   He was managing a savings account for his son C and able to use a computer although he had difficulties remembering basic operations.  S had also been on two holidays to France and Australia.  He made all the travel arrangements himself and managed his own money whilst he was away.  There was no evidence before the court that S had ever made a poor financial decision and had not got himself into debt or given his money away inappropriately.  S had sought financial advice from his brother a businessman, and told the court that he would seek advice from his solicitor on legal matters. He had a significant support network of people who care for him who are able to explain matters and give advice.  The three experts who gave evidence to the court agreed that although his intellectual and cognitive functions were impaired, these did not deprive him of capacity in law.  The dissenting expert on the question of S’s capacity (Dr R) came to his decision based on S’s lack of adjustment to his situation and pathological grief reaction.  He was also concerned about S’s ability to weigh information due to his mental state.  In other words S had the intellectual capacity to litigate and manage and control the proceeds of the litigation but his mental state prevented him from applying that intellectual capacity reliably. 

By applying the statutory test, the court held that the principles of the MCA also applied to the facts of this case.  Provided S was given an explanation of the relevant information in a way that was appropriate in the circumstances the court held that he was not to be regarded as unable to make a decision.  The court had to focus on matters that arose for decision at the current time.  Dr R conceded in his evidence that his opinion was heavily influenced by his concern about the future rather than the present.  The court held that incapacity was a matter of legal classification based on medical and factual evidence.  It was not a matter of diagnosis.  Although Dr R had his doubts about the law the court was required to apply it.  It did not doubt that there might be times in the future when S would lack capacity to make particular decisions but the law required the court to make its decision on the evidence before it at the time.  The court rejected Dr R’s evidence that S lacked capacity and he was therefore not a protected party (or a protected beneficiary).  Dr R had not applied the correct legal test to his medical diagnosis.  If the correct test had been followed the court found that from the medical evidence of all the experts, the assumption that S had capacity was not displaced.

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