Judge: Stuart-Smith J
Citation:  EWHC 1730 (QB)
The court was required to decide the capacity of A to manage his property and affairs in the context of personal injury proceedings. A suffered a very severe brain injury and significant orthopaedic injuries when he was struck by a car driven by C. He brought a claim for damages and the trial on liability was settled. As C was uninsured the Motor Insurers Bureau (MIB) stood in his shoes; it also conducted the defence of the claim. The MIB alleged at the damages stage that A was malingering and that his on-going cognitive defects were mild. The MIB argued that A’s demonstrated cognitive performance and motivation undermined his claim that he would be unable to lead an independent life. The MIB also argued that the results of psychometric tests suggested that A was deliberately exaggerating his difficulties. In support of its case the MIB cited the fact that A had passed the UK Citizenship Test.
One of the issues in the case was whether A would have capacity to manage his property and affairs. Stuart-Smith J set out the test for capacity contained in the MCA 2005 and concluded on the balance of probabilities that A would lack capacity in this regard, as asserted by his litigation friend (paras 296-298), after receiving a substantial award of damages. The judgment summarises the expert evidence from a number of medical professionals on this issue (see paras 287-295). Stuart-Smith J acknowledged that the other medical experts tended to defer to the neuropsychologists, but did not accept that the other experts were unable to provide assistance on this issue. He went on to find that the conclusion that J lacked capacity to manage his property and affairs on the basis of the expert evidence was also supported by “a Banstead assessment that he is impulsive and very suggestible; and that, while his mental arithmetic was adequate for small numbers he became confused with larger numbers; and by the recommendation that he required support with managing all personal finances including large amounts of personal money, complex finances, bills and benefits” (para 297).
Comment: It is of interest that the MIB sought to argue that the expert evidence was inadequate to overturn the presumption of capacity and, furthermore, appears to have asserted that the experts other than the neuropsychologists were unable to provide assistance on this issue (see paras 286 and 296). It was clearly appropriate for Stuart-Smith J to take into account all relevant evidence in reaching his conclusion that A lacked capacity. It may be noted that in doing so, he adopted a decision-specific approach, examining A’s capacity to manage his property and affairs after receiving a substantial sum of damages, a conceptually different matter to the management of much smaller sums of money.