Mental Capacity Case

OH v Craven

High Court (Queen’s Bench Division) (Norris J)


This case is obligatory reading for anyone involved in a case where it is envisaged that there will be a personal injury exceeding £1m.

It involved one case where C was a minor who would have capacity on majority and one case where C was an adult who had had a litigation friend as evidence suggested he lacked litigation capacity but later evidence concluded he had capacity to manage his property and affairs.

In each case, there was an application that sums in excess of £2m should come out of the CFO and go into a PI trust where the trustee was linked to the litigation firm.

The judge held that this gave rise to an Etridge [2001] UKHL 44 situation of presumed undue influence and that the adult C and the minor C's litigation friend should have or have the opportunity to have independent advice (at the litigation firm's expense): see paras 30-32.

He also held that where the fund was over £3m consideration should be given to the appointment of an independent protector of the trust: see para 32.


The approach of the court, plainly, came as a surprise to the applicants' legal advisers (see para 15). They had not anticipated the attentions of a Queen's Bench judge. The ruling, logically, also applies wherever a large PI trust is envisaged even without any court involvement.