Judge: Charles J
Citation:  EWCOP 2532
In this case Charles J was considering the issue of whether P’s funds from a personal injury award of £1.5 million should be administered through a deputyship or a trust. Charles J had approved the settlement sitting as a QB judge. There was an issue as to P’s capacity to manage his property and affairs and Charles J held that P lacked such capacity but that there was a small chance that P might regain capacity and the issue should be kept under review (paragraph 7).
At paragraph 8, however, Charles J stated that the given the unusual and difficult nature of the case, the deputyship order should not have been made by an authorised officer.
The evidence suggested that with support P would have capacity to make decisions about how to spend the income from his award (paragraph 11). It also suggested that in the event that P regained capacity to manage the capital element of his award, he would be very vulnerable to exploitation (paragraph 16). There was also a serious risk of a breakdown in the relations between P and his professional advisers (paragraph 15).
This lead Charles J to suggest that it would be in P’s best interests for the award to be settled on irrevocable trusts which allowed P autonomy over income but would not allow P access to capital even if he regained capacity (paragraphs 17 and 18). He thus, at paragraph 65, directed the parties to produce an analysis of the rival options (including but not only their costs).
He then turned to considering SM v HM  COPLR 187 (a decision of HHJ Marshall).
That case is often cited as authority for the proposition that there is a strong presumption in favour of a deputyship over a trust. Charles J held that it was not or if it was, then it was wrong (paragraph 69).
At paragraphs 76-79 he said this:
Lastly, at paragraph 92, Charles J summarised points that should be considered in analogous cases:
“I make the following points:
(1) The management regime for a substantial award of damages should be considered as soon as is practicable.
(2) This will involve a careful consideration of what the claimant (P) has and does not have the capacity to do and of his or her likely capacity and/or vulnerability in the future. This is relevant to both jurisdictional and best interests issues.
(3) It will also involve the identification of all relevant competing factors and should not proceed on the basis that there is a strong presumption that the COP would appoint a deputy and would not make an order that a trust be created of the award. Rather, it would balance the factors that favour the use of the statutory scheme relating to deputies (that often found the appointment of a deputy in P’s best interests) against the relevant competing factors in that case.
(4) It will also involve the identification of the terms and effects (including taxation) and the costs of those rival possibilities.
(5) Care should be taken to ensure that applications that are not straightforward are not decided by case officers in the COP but are put before judges of the COP.
(6) The possibility of listing case management hearings or the final hearing of QB proceedings before a judge who is also nominated as a COP judge should be considered. However, the potential for conflict between the respective roles of the judge in the two courts (e.g. one arising from a consideration of without prejudice communication in respect of the QB proceedings concerning its settlement that is not agreed or not approved by the COP judge) and the respective jurisdictions of the two courts need to be carefully considered.