Judge: Swift J
Citation:  EWHC 3679 (QB)
Summary: We make brief note of this personal injury case which has recently appeared on Lawtel for its confirmation of the powers of the civil courts under CPR Part 41 to authorise periodical payments where the claimant has fluctuating capacity to manage their property and affairs. In the case before Swift K, the claimant at the point that the court was being asked to endorse the settlement of the claim lacked the material capacity; he was, however, expected to regain it in due course, albeit that both parties wished to provide for a potential further deterioration which might lead to a further loss of such capacity.
Swift J held that she could not construe the provisions of CPR Part 41 so as (in effect) to provide that periodical payments related to costs before the Court of Protection only be paid when the claimant lacked the requisite capacity such that his affairs would be managed by a deputy. Swift J also held that the proposed arrangements did not fall within the scope of the Damages (Variation of Periodical Payments Order) 2005. However, she was entirely happy to endorse as being in the Claimant’s best interests a Tomlin order providing for such payments notwithstanding that they could not be made by the Court; such periodical payments forming part of an agreement endorsed by the court, they would be exempt from taxation.
As with the decision in Coles v Perfect, this decision shows the willingness of the civil courts to endorse pragmatic solutions to problems that pose themselves in the settlement of claims brought by those who appear incapable of managing their property and affairs. We await, however, the decision of the Supreme Court in Dunhill v Burgin (which was to be heard in November 2013, but is to be relisted for a future date), relating to the retrospective impact of litigation incapacity upon settlements.