Judge: Senior Judge Lush
Citation:  EWCOP 22
In this case, Senior Judge Lush had to decide various issues arising out of a large (just over £2.8 million) CICA award decided under the 1990 scheme as a result of an application made in March 1996.
Senior Judge Lush ruled that, as the result of the fact that there is no equivalent to CPR Part 21 in the rules governing applications to the CICA, an application to the CICA by an adult who lacks mental capacity should be made by the holder of a property and affairs EPA or LPA or a deputy or person specifically authorized so to do by the Court of Protection (see paragraph 28).
He ruled, in line with civil claims, that the Court of Protection’s approval is not necessary for awards to be accepted on P’s behalf, whether as to quantum or conditions (see paragraphs 30 and 32).
He further ruled that where the CICA makes it a condition of an award that there is a trust, then the Court of Protection, where the applicant lacks capacity so to do, should set up the trust and an application must be made to the Court of Protection for an order under section 18(1)(h) of the MCA (see paragraphs 38 – 41, differing here from the position of the Official Solicitor, who had invited him to find that it was the CICA/the Tribunal to establish the settlement and execute any relevant instruments).
Senior Judge Lush ruled that, although the terms of the trust were in the Court of Protection’s discretion, he doubted whether the court could do other than approve the terms stipulated by the CICA or the Tribunal and he could not envisage a situation in which the court would not approve terms which, for policy reasons, were so fundamental as to be non-negotiable (see paragraphs 43 and 44). He ruled that a deputyship might not be necessary where there was a trust, (see paragraphs 45 – 48). He further ruled that the deputy could also be a trustee but that the trust should contain a power for P, and hence the Court of Protection, to remove and replace trustees, (see paragraph 59).
Finally, Senior Judge Lush ruled that a Peters (Peters v East Midland Strategic Health Authority  QB 48) undertaking was appropriate (see paragraph 67) or, if the deputyship order is discharged, there should be a suitable restriction of the trustees powers, (see paragraph 72).
Senior Judge Lush’s decision is of importance for outlining (for the first time) the respective tasks of the CICA and the Court of Protection in relation to recipients of CICA awards who are unable to manage their property and affairs. His pragmatic approach (e.g. to the question of whether and how applications were to be made in the absence of rules providing for litigation friends before the CICA) is unsurprising.
Senior Judge Lush’s approach to the question of Peters undertakings is unlikely to be of much future relevance in relation to CICA awards given the current £500,000 cap on CICA awards. It is, however, of interest in relation to personal injury awards (although Senior Judge Lush has previously expressed some scepticism about the role of the Court of Protection in seeking to ensure that double-recovery does not take place: see his earlier decision in Re Reeves).