DXW v PXL

A protected person who lacks capacity to decide whether to know the amount of a personal injury settlement should ordinarily be informed of it. Withholding that information interferes seriously with autonomy, dignity and associated rights, and requires evidence establishing real necessity. The court must apply the statutory best-interests framework and consider the person’s wishes and feelings, even where the person lacks decision-making capacity. Exceptionally, the court may decide that seeking the person’s views would itself undermine those interests, including where disclosure would cause distress, disrupt rehabilitation, increase vulnerability or impede care. A non-disclosure order must be tailored and remain subject to review.

The claimant suffered severe traumatic brain injuries while working for the defendant. The parties negotiated a settlement of £6.6 million, which required court approval because the claimant was a protected person under the Mental Capacity Act 2005. The claimant also sought an order preventing him from learning the settlement amount, following the approach in EXB v FDZ and others [2018] EWHC 3456 (QB).

The central issues were whether the claimant lacked capacity to decide whether to know the settlement amount and whether non-disclosure was in his best interests, including whether his views should first be sought.

1. The settlement was approved. The claimant lacked capacity to decide whether he should know the amount of the settlement, and it was currently in his best interests not to know it.

2. Under section 4 of the Mental Capacity Act 2005, the court had to consider all relevant circumstances, promote the claimant’s participation so far as reasonably practicable, and take into account his past and present wishes and feelings, beliefs, values and likely considerations. Lack of capacity did not make his views irrelevant.

3. Ordinarily, the claimant’s views should be sought. However, the court was satisfied on the evidence that communicating with him about the application would itself undermine his interests. The evidence showed insufficient insight into confidentiality, the purpose of the settlement fund and its proper use. Knowledge of the precise sum was likely to cause upset and confusion, disrupt rehabilitation, impede the deputy’s and carers’ work, and expose the claimant to approaches by unscrupulous persons.

4. Non-disclosure represented a serious interference with autonomy, dignity, common-law rights and Article 8 rights. It was therefore permissible only on evidence establishing real necessity. The court applied a similar protective approach to that adopted in EXB v FDZ and others [2018] EWHC 3456 (QB).

5. Orders were made under sections 15(1)(c) and 16 of the Mental Capacity Act 2005. It was declared unlawful for any person with knowledge of the settlement to convey its amount to the claimant, save that descriptive information could be given that the settlement was sufficient to meet his reasonable needs for life. The deputy undertook to consider annually whether the order should be revoked or varied.