EXB v FDZ & Ors

When determining whether a protected person should be told the value of a personal-injury settlement, the court must apply the Mental Capacity Act 2005 best-interests framework. The person’s wishes, feelings, beliefs and values remain relevant even where he lacks capacity, and participation should ordinarily be encouraged. However, disclosure may lawfully be restricted where the evidence shows that knowledge of the sum would expose the person or the settlement fund to serious vulnerability, impulsive spending or exploitation. The capacity question is specific to the decision in issue. The Court of Protection may make declarations and directions, but orders should be limited, reviewable and proportionate. The tortfeasor may be liable for the costs of an application required directly by the injury.

The claimant suffered permanent cognitive and executive impairments following a severe brain injury in a road accident. The settlement of his personal-injury claim had been approved, but the court deferred whether he should be told the settlement amount. Evidence from the claimant, his mother, deputy, case manager and neuropsychologist addressed his ability to understand the fund’s purpose, weigh consequences and resist pressure from others.

The issue was considered by the judge both in the Queen’s Bench Division and exercising the Court of Protection jurisdiction. The central questions were whether the claimant had capacity to decide whether to know the settlement amount, whether non-disclosure was in his best interests, what order the court could make, and who should bear the costs.

1. Capacity and best interests. Applying section 4 of the Mental Capacity Act 2005, the court considered the claimant’s likely future capacity, his participation, his wishes and feelings, the views of those caring for him, and all relevant circumstances. The decision was specific to whether he should know the settlement amount. His brain damage made it unlikely that he would regain capacity for that decision, although the position required periodic review.
2. The claimant’s expressed preference not to know the amount was relevant. The evidence established that he understood the issue only superficially, acted impulsively, struggled to weigh competing consequences and was vulnerable to pressure and exploitation. Knowledge of a crystallised figure would probably increase those risks and threaten the fund intended to meet his lifetime needs. It was therefore in his best interests not to know the amount.
3. Orders. Under sections 15 and 16 of the Mental Capacity Act 2005, the court declared that the claimant lacked capacity to decide whether to know the amount and that non-disclosure was in his best interests. It declared disclosure unlawful by any person with knowledge of the settlement, while permitting descriptive information that the settlement was sufficient to meet his reasonable needs for life. The deputy could disclose the order and apply urgently without notice if disclosure appeared imminent. The order was to be reviewed at least every six months.
4. Costs. The application arose directly from the injury caused by the tortfeasor. There was no principled basis for denying liability for its costs, whether claimed as damages or as costs in the Court of Protection proceedings. The Third and Fourth Defendants were ordered to pay the claimant’s costs, subject to detailed assessment.

Not an appeal. The judgment followed an earlier approval of the settlement on 23 April 2018 and determined the deferred Court of Protection issues.