DXW v PXL

Summary

In this case P suffered serious brain injuries whilst at work. These left him with severe cognitive and executive impairments. Apart from lacking litigation capacity, the evidence was clear that he lacked the capacity to manage his property and affairs. His claim for damages was settled for £6.6million and the court approved that settlement making the usual anonymity orders.

Those responsible for P's care and his property and affairs deputy considered that P would be at risk of significant harm if he knew the size of the award. There was evidence that P's rehabilitation would be prejudiced, that he would become upset and confused and would be rendered more vulnerable.

The court in EXB v FDZ [2018] EWHC 3456 (QB) (2019) PIQR P7 had considered this issue and granted an order that it was in P's best interest not to be told the size of the award and this case is an illustration of when such orders are justified and considers a factor that was not present in EXB.

In EXB, P had been informed that P's views had been sought bearing in mind the requirement in s.4(6) MCA 2005 when applying the best interest test to consider so far as reasonably practicable P's wishes and feelings and the principles of non-discrimination and autonomy enshrined in the CRPD.

In this case P had not been told of the application. The judge was concerned about this, see paragraph's 9-11, stating that in the ordinary case P's views should be sought and that strict justification based on evidence of real necessity would be required to displace that starting point.

Ultimately, the court was so persuaded principally on the grounds that P's rehabilitation would be impeded if he knew even that the application was being made (paragraph 16).

Comment

Applications to this effect will be unusual as they represent a serious invasion of P's right to know and the principles of autonomy and non-discrimination. Even rarer will the case here that P is not told of the application itself. The effect of the decision in this regard is that the court has made a decision for P that P should not be told of an application being made in respect of P's property and affairs in circumstances where he could express a view so that ascertainment of his wishes and feelings is reasonably practicable. This is directly contrary to s.4(6) MCA 2005 which requires (through the use of the word "must") consideration of such wishes and feelings.