Judge: Sir Robert Nelson
Citation:  EWHC 1026 (QB)
Summary: We make brief note of this quantum-only personal injury judgment for the approach adopted by Sir Robert Nelson (sitting as a High Court Judge) to the question of whether the Claimant (who had been moderately brain injured when struck by a car) had the capacity to manage her property and affairs.
The main factor pointing towards the Claimant’s incapacity in this regard was her impulsivity, which had led her to spend substantial sums (including a significant portion of a sum paid to her by way of interim payment) upon gambling and online gaming before her mother took control of her daughter’s finances and provided her with limited sums of pocket money.
The experts instructed on behalf of the two parties agreed that the Claimant’s impulsivity was the potential cause of her inability to weigh properly the necessary information in order to make a decision. However, whilst the Defendant’s consultant neuropsychiatric expert accepted in evidence that if the Claimant were to be given access to her bank account into which her pension money was paid, and then provided with her cash card there was a substantial risk that she would spend the money inappropriately, he nevertheless expressed the view (paragraph 93) that the Claimant did have financial capacity and that a Trust should be put in place in order to protect her from herself.
Sir Robert Nelson concluded, however, that it could not properly be said that the Claimant was at the date of the hearing managing her own money. She was only doing that, and making decisions in relation to it, with the substantial assistance of her mother. He noted that, even if it were to be the case that she participated in the decision to pay individual bills and then carried that out and obtained the receipts (see paragraph 89), the guiding person in making the decision was her mother. Sir Robert Nelson accepted the Defendant’s submission that it would be possible for the Claimant’s mother to exercise yet further control over the situation by advising the Claimant to make payments by direct debit, by obtaining copies of the bank statements herself, and by becoming a co-signatory. However, the judge noted that the difficulty remained that the Claimant had demonstrated an inability to take appropriate care of her money, and along with noting the evidence of the experts found it to be “telling” (paragraph 94) that she had given evidence that she would probably “blow” the cash were she to have access to it by herself without the constraints of the system set in place by her mother for collecting and delivering her pension, are telling. At paragraph 95, Sir Robert Nelson therefore concluded that the Claimant, as at the time of delivering judgment, did not have financial capacity because she was unable to weigh the necessary information as part of the process of making a decision and, were she to have access to substantial funds through an award of the court there was a serious risk that she would spend large amounts of it inappropriately without others necessarily knowing what she had in fact done. Sir Robert Nelson did not consider that a trust would provide adequate protection for the Claimant in such circumstances and, accepted the point made by the Claimant’s counsel that if the trust’ only purpose was to stop inappropriate spending then it suggested financial incapacity.
At paragraph 96, Sir Robert Nelson concluded on this point that:
“96. I emphasise however that whilst I have firmly in mind that impulsivity may remain, it is not inconceivable that the Claimant’s condition in the years to come may demonstrate that she has in fact gained financial capacity. I am not prepared to make any ruling, even if I were able to do so at this stage, which finds that the Claimant is permanently incapable of managing her own property or affairs. It would be perfectly reasonable for the Court of Protection itself to reconsider her situation some time after two years following the conclusion of the litigation. If the decision then was that at that time she had financial capacity, consideration could be given as to whether a Trust ought to be set up to provide guidance and assistance in the management of her money.”
Comment: Whilst elements of the deliberation summarised above would on one view seem to conflate the wisdom of the decisions taken by the Claimant regarding her finances and the question of whether they were made with capacity, the end result (on the evidence as summarised in the judgment) would seem to be unimpeachable. The judgment is also of note for the ringing endorsement of the possibility of recovery from incapacity; whilst we have some reservations as to whether a judge sitting in the Queen’s Bench Division has the power to direct the Court of Protection to review the Claimant’s capacity (paragraph 97), one would anticipate that Sir Robert’s exhortation would be incorporated into the consequential order that one would anticipate seeing in that latter Court for the management of the Claimant’s property and affairs.