England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/11/2007

Mr. Andrew Edis, Q.C.

1. This is the trial of a preliminary issue as to the capacity of the Claimant to (1) manage his own property and affairs, and (2) conduct this litigation. It was directed in these terms by an Order of Master Leslie made on 27^th July 2007. Since that Order was made, The Civil Procedure (Amendment) Rules 2007, SI 2007 No 2204 have come into force. These introduce a new Part 21 to the Rules to conform with the changes brought about by the Mental Capacity Act 2005. Both the new Rules and the Act came into force on 1^st October 2007. There are no transitional provisions affecting their application to current actions for damages for personal injuries, and they therefore apply to the present case. It seems to me, for reasons which I give below, that the preliminary issues should be framed to conform with those Rules and that therefore the question I have to decide is whether

i) The Claimant is a protected party within the meaning of CPR 21.1(d) which defines a "protected party" as a party

"who lacks capacity to conduct the proceedings"

ii) If I decide that the Claimant is a protected party, then I must go on to decide whether he is a protected beneficiary as defined by CPR 21.1(e), namely a protected party who

"lacks capacity to manage and control any money recovered by him or on his behalf or for his benefit in the proceedings."

2. The Claimant presently has a litigation friend, his sister Gabriella. Her appointment was made without a formal finding of incapacity by the Court after hearing evidence. If I conclude that he is not a protected party, then her appointment will come to an end, and this will, I think, require an Order from me under CPR 21(9)(2). In that event also, as I understand the provisions, it will not be necessary for me to consider whether the Claimant is a protected beneficiary, since he cannot have that status unless he is a protected party.

BACKGROUND

3. The case is a very sad one in which a talented and highly motivated young man suffered a severe injury to his brain in a road traffic accident in France on 1^st January 2001. He was a rear seat passenger in a car driven by the defendant into the back of an articulated lorry. One of the occupants of the car died, and the Claimant suffered severe traumatic brain injury demonstrated by brain scan as right frontal haemorrhagic contusion. Judgment has been entered in favour of the Claimant by consent but there is an issue of contributory negligence arising from his alleged failure to wear a seat belt. This will be tried at the assessment of damages hearing which is listed for next March. It is apparent from the medical evidence in the case, and from the factual evidence about the Claimant's fine prospects before the accident that this will be a large award of damages and that the "money recovered by him….. in the proceedings" will be substantial.
4. It is necessary to identify what kind of decisions will be required from, or on behalf of, the Claimant in the litigation. Decisions will have to be made about how the award is invested once it is received. Before that, the litigation must come to a conclusion. The Court will have to adjudicate on claims for, among other things, future losses of earnings and care costs. These may be provided for by a lump sum, or by periodical payments. Dr. Scheepers and Dr. Jacobson have both told me in evidence that there is a risk of significant deterioration in the Claimant's condition and the Claimant will have to decide whether to make a claim for provisional damages. This deterioration would be a deterioration to his mental state, for example he may become more psychotic or deeply depressed. Such changes might affect his capacity in the future. Other parts of the award will probably be paid by lump sum. Hitherto, there has been an interim payment of only £25,000 which has been expended. Therefore, the vast majority of the claim remains to be met, and payment is expected either at trial next March or by compromise before then. Any compromise offer will reflect various discounts for litigation risk against various heads of claim. The most substantial issue on any compromise will be the extent of discount which the Claimant ought to allow, if any, for the possibility that the Court may find that he is exaggerating his symptoms deliberately. It is the defendant's case, supported by Dr. Jacobson, that there is such conscious exaggeration, proved by a comparison of his account of his symptoms (supported by his family) given to Care Experts in 2005. He took a long holiday in Australia that year, on his own, and was seen by Maggie Sargent just before he left and by Jane James after his return. He did not mention his holiday to either of them and neither did any member of his family. The picture presented to them was of unrelieved reclusive behaviour, social isolation and aggression. There is a contrast between the DVDs taken on the holiday (and the fact of the holiday itself) and that picture which will have to be the subject of settlement discussions and, if there is no settlement, judicial decision.
5. In respect of one important decision, the Court has some supervisory influence, even if he has capacity. Will he choose to seek periodical payments, or will he instruct his counsel to obtain the highest possible lump sum? In evaluating the kind of decisions which he will have to take and also the practicable steps available to help him, as I shall at the end of this judgment, the powers of the Court in relation to periodical payments are material. The making of such an order would reduce the extent of any financial decisions required by the Claimant and would give him some measure of protection against exploitation or profligacy. The Rules offer some protection against unwise decisions by claimants who are of full age and capacity, and their existence is one of the matters to be taken into account in deciding whether this Claimant has capacity to control the litigation. The factors to be taken into account by the Court in deciding whether to make a periodical payments order include by 41BPD.1

" (2) The form of award preferred by the claimant including

(a) the reasons for his preference; and

(b) the nature of any financial advice received by the claimant when considering the form of the award."

THE ROLE OF THE OFFICIAL SOLICITOR

6. The situation which the Claimant's advisers have had to address has not been straightforward. There is a large number of reports from seven experts who have expertise which enables them to offer an opinion on capacity. All bar one express the opinion that the Claimant does have capacity both to litigate and to control the money to be recovered in the proceedings. The exception is Dr. Rose who has consistently and cogently argued that he does not. He was retained on behalf of the Claimant. The Claimant's advisers considered a decision of Stanley Burnton J in Lindsay v. Wood [2006] EWHC 2895 (QB) where a similar situation had arisen. He noted that counsel for the Claimant before him had felt unable to take any positive stand on the issue of capacity and that counsel for the defendant had submitted that the evidence did not establish that the Claimant was a patient (to use the terminology then current). The defendant's approach was not surprising because a finding of incapacity would increase the damages. Since the burden of establishing incapacity is on the person asserting it, and nobody was asserting it, Stanley Burnton J detected an imbalance which had an unfortunate forensic result. He held that in such cases "consideration should be given to seeking an order of the Court directing the Official Solicitor to consider the evidence, to appoint his own medical expert if he sees fit, and to appear and make such submissions as he considers appropriate on the hearing of the issue". The Claimant's advisers have not followed this course on the grounds that substantial cost and, perhaps, delay might be occasioned by it. They took the view that a proportionate approach was to instruct a further expert, a neuropsychiatrist called Dr. Scheepers, to report on the issue and then to consider their options in the light of his advice. In the result, he formed the view that the Claimant has both relevant capacities, and so Dr. Rose remained a single voice. The case then came before me and I heard from the three crucial experts, Dr. Rose, Dr. Scheepers, and Dr. Jacobson, a neuropsychiatrist who had reported on behalf of the defendant. I read Reports from them, and from Dr. Gross, Dr. Greenhall, Dr. Rogers, and Dr. Skelton-Robinson all of whom advised that the Claimant does not suffer from incapacity in law. I also heard from the Claimant himself and from 3 members of his family and I viewed DVD evidence which formed a prominent part of the basis on which the opinions of some of the experts were formed. I allowed counsel for the Claimant to take the evidence of the witnesses called by him orally, rather than simply relying on the written material. I was also assisted by hearing the case for incapacity put from the witness box by Dr. Rose, challenged by Mr. Jeffreys QC for the defendant, and by the cross-examination of Dr. Jacobson by Mr. McCaul QC for the Claimant. That was a careful cross-examination designed to test Dr. Jacobson's evidence in support of a finding that the Claimant has capacity.
7. The first question which I have to resolve is whether I am content to decide the issue on the basis advanced by the parties or whether I feel that I ought to adopt the course suggested by Stanley Burnton J in Lindsay v. Wood. This will be a matter of judgment in each case, and no general rule can be established. This is why he did not hold that the Official Solicitor should be involved in every such case, but only that "consideration should be given" to his involvement. Consideration has indeed been given to that step by the Claimant's advisers, and, now, by me. I consider that the evidence which has been presented to me, and the careful manner of its presentation by counsel, has enabled me in this case to form a clear view of the merits of the issue. I do not think that there is any real risk that my decision is likely to be flawed because of the forensic imbalance created by the absence of any party positively urging a finding of incapacity. I make two further observations on this issue:-

i) Given the abundant evidence from a large number of experts, 3 who gave evidence orally and 4 whose evidence was received in written form, and given the high quality of that evidence, I see no reason to suppose that any medical evidence obtained by the Official Solicitor would add any new material or opinion which is not already fully before me. This conclusion is supported by the extensive and recent clinical records which include records of Cognitive Behavioural Therapy provided by Helen O'Neill and Dr. Brian Moffat. This treatment has produced an improvement in the Claimant's condition, according to Dr. Scheepers, and has produced a file of records showing the Claimant's mental state as recently perceived by Helen O'Neill. The evidence on the capacity issue before the Court is extensive and, I consider, probably complete.

ii) Therefore, the handicap under which the Court may labour is not one of absence of evidence but of advocacy, in that there is no advocate pressing for a finding of incapacity. I doubt whether any advocate instructed by the Official Solicitor on this evidence would take that course. I anticipate that they would assist by testing the evidence to ensure that the possibility of incapacity was fully aired so that it was clear to the Court whether it was established or not. This role has been performed, in essence, by counsel for the Claimant, Mr. Colin McCaul, Q.C.. I have directed myself that in these circumstances I should carefully scrutinise the evidence for and against a finding of incapacity and be astute to make allowances for the absence of any positive submissions in favour of it.

8. In these circumstances I agree with counsel for the Claimant that the approach which has been taken is proportionate and I am content to decide the issue without involving the Official Solicitor.

THE TEST OR TESTS FOR INCAPACITY

9. In their Skeleton Arguments, which have been of great assistance, both Leading Counsel who have appeared before me, drew attention to an apparent choice which the Court has about whether to adopt the statutory test in section 2(1) of the Mental Capacity Act 2005 in respect of the decision about the Claimant's capacity to conduct litigation. They suggested, in Mr. McCaul Q.C's case, or accepted, in Mr. Jeffreys Q.C.s' case, that the decision about whether the Claimant has capacity to manage or control the money to be recovered in the proceedings is covered by the Act, and the Court is therefore required to adopt the statutory test. They both suggested that the Court should adopt the new statutory test in both decisions, which is clearly sensible. In the course of the hearing it became clear that this analysis may not be entirely accurate in that the Act concerns decisions which the Court of Protection has jurisdiction to make, and not decisions of the High Court Queens Bench Division in civil proceedings. The Court is not therefore required by the Act to adopt the definition and approach there set out at all. It may be helpful to explain why this misunderstanding arose and what the true position is, as I hold it to be.
10. The Mental Capacity Act 2005 came into force on the 1^st October 2007, as did the new CPR Part 21 and Practice Direction. The definition of "capacity" in section 2(1) is a definition "for the purposes of this Act". It is not one of the purposes of the Act to regulate or in any way address the way in which the Court approaches the question of capacity to litigate, and the definition section, section 64, defines "the court" as "the Court of Protection established by section 45". The Act does not purport to regulate the conduct of any other "court". I am not able to sit in the Court of Protection because I have not been nominated to do so under section 46 of the 2005 Act and I doubt whether there is power to nominate me by reason of the terms of section 46(2)(c). The closest powers in the Act to that which I am asked to exercise are those contained in sections 15-18, but those are powers vested in the new Court of Protection. If the jurisdiction to decide these issues comes from within the Act, I do not have it. If it comes from beyond the Act, then the definition in section 2(1) of the Act does not apply as a result of any provision in the Act.
11. The original approach of counsel was based on paragraphs 4.32 and 4.33 of the Code of Practice made under sections 42 and 43 of the 2005 Act. These provide:

"4.32 There are several tests of capacity that have been produced following judgments in court cases (known as common law tests). These cover:

Capacity to make a will

Capacity to make a gift

Capacity to enter into a contract

Capacity to litigate (take part in legal cases), and

Capacity to enter into marriage.

4.33 The Act's new definition of capacity is in line with the existing common law tests, and the Act does not replace them. When cases come before the court on the above issues, judges can adopt the new definition if they think it is appropriate. The Act will apply to all other cases relating to financial, healthcare or welfare decisions."

12. The Code of Practice was published in advance of the coming into force of the new CPR 21, and is, in my judgment, inaccurate in asserting that the only capacity decisions which may be taken by a court to which the Act does not apply are those identified by the bullet points in paragraph 4.32. That is not what the Act says.
13. The common law test for capacity to litigate was set out by the Court of Appeal in Masterman-Lister v. Brutton & Co [2003] 1 WLR 1511 at 1539D by Chadwick LJ:-

"For the purposes of Order 80 – and now Part 21 – the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law – whether substantive or procedural – should require the interposition of a next friend or guardian ad litem (or, as such a person is now described in the Civil Procedure Rules, a litigation friend)."

14. Kennedy LJ in Masterman-Lister at paragraph 19 makes it clear that the test adopted by the Courts in dealing with incapacity to conduct litigation was not the same as that vested in the old Court of Protection by Part VII of the 1983 Act. The former was related to the particular Claimant and his or her individual problems in managing the particular piece of litigation in question. The 1983 Act required the Court of Protection to adopt a different approach:-

"There the judge must consider the totality of the property and affairs of the alleged patient, and no doubt if it is shown that he lacks the capacity to manage a significant part of his affairs the court will be prepared to act, exercising control in such a way that the patient continues to have control in relation to matters which he can handle." [paragraph 19 per Kennedy LJ].

15. On first reading the extract from the Code of Practice set out at paragraph 10 above, it seems to contain an unorthodox proposition, namely that Judges are free to adopt a new statutory test if they wish to do so, whatever the common law (which is not affected by the statute) may have provided. Munby J held that this is not the correct way to understand the Code of Practice in In the matter of MM (an adult) [2007] EWHC 2003 (Fam) at paragraphs 79-80. He said

"What is being said is that judges sitting elsewhere than in the Court of Protection and deciding cases where what is in issue is, for example, capacity to make a will, capacity to make a gift, capacity to enter into a contract, capacity to litigate or capacity to enter into marriage, can adopt the new definition if it is appropriate – appropriate, that is, having regard to the existing principles of the common law. And since, as I have said, there is no relevant distinction between the test as formulated in Re MB and the test set out in section 3(1) of the Act and since, as it were, the one merely encapsulates in the language of the Parliamentary draftsmen the principles hitherto expounded by the judges in the other, the invitation extended to the judges by the Code of Practice is entirely understandable and, indeed, appropriate."

16. Munby J's analysis of the history of the approach to capacity outside the old Court of Protection is at paragraphs 62-92 of his judgment in In the matter of MM (an adult) and I shall not repeat it. I agree with him that the test in Masterman-Lister v. Brutton & Co is "essentially the same test as that set out in Re MB (Medical Treatment) [1997] 2 FLR 426, albeit expressed in slightly different words". In Re MB Butler-Sloss LJ formulated a test which was modelled on the draft Mental Incapacity Bill annexed to the Law Commission's 1995 Report Law Com No 231, Mental Incapacity. That Report was the genesis of the Mental Incapacity Act 2005. In short, the common law test applied by judges in making decisions (but not the test provided by Part VII of the 1983 Act for the old Court of Protection), in the words of Munby J at paragraph 78,

"…reflect a general theory which, moreover, has now been given statutory force in section 3 of the Mental Incapacity Act 2005."

17. I now return to CPR Part 21 and the Practice Direction, newly in force on 1^st October of this year. I have referred to them in defining the preliminary issue at paragraph 1 above, and now set them out in full, so far as relevant.

"Scope of this Part

21.1. -(1) This Part-

(a) contains special provisions which apply in proceedings involving children and protected parties;

(2) In this Part-

(a) "the 2005 Act" means the Mental Capacity Act 2005;

(c) "lacks capacity" means lacks capacity within the meaning of the 2005 Act;

(d) "protected party" means a party, or an intended party, who lacks capacity to conduct the proceedings;

(e) "protected beneficiary" means a protected party who lacks capacity to manage and control any money recovered by him or on his behalf or for his benefit in the proceedings.

21.10.- (1) Where a claim is made-

(a) by or on behalf of a child or protected party;…..

no settlement, compromise or payment (including any voluntary interim payment) and no acceptance of money paid into court shall be valid, so far as it relates to the claim by, on behalf of or against the child or protected party, without the approval of the court.

21.11.- (1) Where in any proceedings-

(a) money is recovered by or on behalf of or for the benefit of a child or protected party; or

(b) money paid into court is accepted by or on behalf of a child or protected party,

the money will be dealt with in accordance with directions given by the court under this rule and not otherwise.

(2) Directions given under this rule may provide that the money shall wholly or partly be paid into court and invested or otherwise dealt with.

(3) Where money is recovered by or on behalf of a protected party or money paid into court is accepted by or on behalf of a protected party, before giving directions in accordance with this rule, the court will first consider whether the protected party is a protected beneficiary."

18. The Practice Direction provides that applications for approval of a compromise in proceedings involving a protected party will normally be heard by a Master, a designated civil judge or his nominee, see 21PD paragraph 5.6. The Practice Direction also provides as follows:-

"10.1 The Court of Protection has jurisdiction to make decisions in the best interests of a protected beneficiary. Fees may be charged for the administration of funds and these must be provided for in any settlement."

"10.2 Where the sum to be administered for the benefit of the protected beneficiary is

(1) £30,000 or more……

…….the order approving the settlement will contain a direction to the litigation friend to apply to the Court of Protection for the appointment of a deputy, after which the fund will be dealt with as directed by the Court of Protection…"

19. It follows from the definition section of CPR Part 21 quoted above that the court does not have a choice extended by invitation of the Code of Practice as to whether or not to apply the statutory test. This may have been the position when Munby J decided In the matter of MM in August 2007, but it has not been the case since 1^st October 2007 when the new Part 21 came into force. The definition to be adopted in deciding whether a person is a protected party, or a protected beneficiary is the statutory definition.
20. It is plain from the extracts from CPR Part 21 and the Practice Direction that these rules govern the court when exercising its functions prior to any application to the new Court of Protection. The CPR do not apply to proceedings before the new Court of Protection by virtue of CPR Part 2(2) as now amended. Under the former regime, the Court of Protection made a decision to act based on a general finding under Part VII of the 1983 Act that the patient lacked capacity to manage his affairs. Having accepted jurisdiction, it retained it in respect of all transactions during the incapacity. Now, the Court of Protection will take decisions on behalf of a protected person where it decides that the person lacks capacity at that time and in respect of that particular decision. The new CPR Part 21 provides for the court hearing the legal proceedings and making or approving an award of damages to adopt an approach in conformity with the new system.
21. Therefore, I conclude that the court conducting the proceedings, in this case the Queens Bench Division of the High Court, is required to decide two new questions which are created by the CPR and not by the 2005 Act. These are the questions I posed in paragraph 1 of this judgment. In approaching them I adopt the definition of the 2005 Act, not because I am required to do so by the Act, but because I am required to do so by the CPR.
22. In posing these new questions, the CPR adopts the common law test which was being developed for the issue of capacity to litigate and does not change the legal position. In requiring the court to address the "protected beneficiary" issue using the same test, the CPR establish one criterion for approving settlements in such cases (Court of Protection Fees must be provided for in any settlement involving a protected beneficiary). The Rules also, so far as material to the present case, provide a procedure for giving directions under CPR 21.11 and CPR PD 10(2) in cases over £30,000. This enables the court to preserve the fund and to ensure that the Court of Protection is involved in its administration in appropriate cases. Such powers are procedural and were exercised previously where a court acted on the basis of its determination of the capacity issue using the common law test. The finding that a party is a protected beneficiary has consequences which are quite limited in that the substantive decisions which determine how the funds will be administered will be taken by the Court of Protection on the basis of its own determinations of capacity at times when they are necessary and in respect of particular decisions. The High Court merely makes a finding which enables that process to occur.

THE MENTAL CAPACITY ACT 2005

23. The Mental Capacity Act 2005 is born of a new approach to capacity, the philosophy of which is that those who suffer from disability shall be assisted to live normal lives and to make choices about those lives to the greatest extent possible. Part VII of the Mental Health Act 1983 is replaced with the result described in the Minute to the Judiciary in respect of approval of damages awards by the Court of Protection as follows:-

"Under Part VII, once a person is a patient of the Court of Protection, they remain under its jurisdiction in respect of their property and affairs. This will change under the MCA, which requires a person's capacity to be assessed on a decision and time-specific basis"

24. Similarly, the Code of Practice at paragraph 4.4 says:-

"An assessment of a person's capacity must be based on their ability to make a specific decision at the time it needs to be made, and not on their ability to make decisions in general."

25. The Act provides:

"1. The Principles

(1) The following principles apply for the purposes of this Act.

(2) A person must be assumed to have capacity unless it is established that he lacks capacity.

(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action."

"2. People who lack capacity

(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

(2) It does not matter whether the impairment or disturbance is permanent or temporary.

(3) A lack of capacity cannot be established merely by reference to-

a. A person's age or appearance, or

b. A condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.

(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities……."

"3. Inability to make decisions

(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable-

a. To understand the information relevant to the decision,

b. To retain that information,

c. To use or weigh that information as part of the process of making the decision, or

d. To communicate his decision (whether by talking, using sign language or any other means).

(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of –

a. Deciding one way or another, or

b. Failing to make the decision."

THE EVIDENCE

26. The evidence on which the Court must reach its conclusion comes from the factual witness statements of the Claimant and members of his family, and from the medical records relating to the Claimant's treatment since the accident, and from the evidence (written or oral) of the 7 expert witnesses I have identified above. I have not been asked to determine issues relevant to the assessment of damages, and have not been asked to make a finding about whether or not there is conscious exaggeration. It is not necessary for me to do so for the purposes of the preliminary issue and I shall not do so.
27. There is a very large measure of agreement between the experts and the factual witnesses also agree about certain propositions. Mr. McCaul QC has rightly drawn my attention to the warning given by Stanley Burnton J in Lindsay v. Wood at paragraph 47 about reliance on evidence from the family in these circumstances, and the problems which conflicting advice might cause. There are various reasons why such evidence might be slanted, consciously or unconsciously, so as to support one outcome rather than another. Often this may be a perception of the interests of the Claimant which is not shared by the Court. I am aware of these considerations and bear them fully in mind. There are medical records in existence which record the condition and behaviour of the Claimant going back over 7 years and he has been assessed on many occasions by experts for these proceedings. This material substantially supports the evidence of the members of the family who gave evidence about the Claimant's behaviour and abilities and lessens the risk of relying on that evidence. The review of the recent records from Dr. Moffat and Helen O'Neill conducted by Mr. McCaul QC in cross-examining Dr. Jacobson did not reveal anything which undermines their evidence.
28. There is little point in setting out all of the references in evidence which support the agreed facts. I propose to identify those matters first, and then to identify the passages of the evidence which bear on the disagreement.

UNDISPUTED FACTS

29. The Claimant suffered a severe head injury in the accident which adversely affects his ability to take decisions because of the physical damage to the brain. His memory is affected and his difficulty in processing information gives rise to aberrant behaviour. Although the extent and frequency of the aberrant behaviour may be in issue at the trial, Dr. Scheepers and Dr. Jacobson both accepted that the Claimant does suffer from behavioural change which causes him to become angry and sometimes violent. This is a mixed result of the physiological damage to the brain and the psychological response to it and to the surrounding circumstances. Dr. Rose explained the psychological response as being the result of an inability to adjust to the multiple and continuing losses from which he suffers. The Claimant has great insight into his condition and is grieving for those losses. I heard from the Claimant and my own observation of him supports Dr. Rose's diagnosis of his mental state and I do not think that the other doctors disagree about the existence of that condition, although its extent is controversial.
30. After he left Hospital after the accident, the Claimant lived successively with each of his sisters, a partner with whom he had a son, Cristiano, and finally with his parents. He has received income from two sources, namely benefits and the proceeds of an insurance policy with Canada Life. This involves him receiving income of about £18,000 a year. He has a bank account into which his income is paid, and he has a credit card. He attributes the end of his relationship with Cristiano's mother to his behavioural problems caused by the brain injury, and he says that she wants nothing to do with him. At one stage he instructed solicitors to seek an order for contact between him and his son, whom he loves. They acted for him, and so far as I am aware, no issue was raised by them as to his capacity to litigate in that relatively simple and, in the result, short lived litigation. He concluded for various reasons which he explained to me that his application was hopeless and decided not to pursue it. One of the reasons was that he learnt that another family member, a police officer, had been denied access to his children, and the Claimant thought "If he cannot win, what chance have I got?" This piece of evidence is not reassuring about his approach to litigation generally, since it suggests that he might have failed to pursue an important issue for him, on grounds which are not wholly rational. This situation has caused him to suffer from further grief, and he has decided to pay his son £40 a month directly and to set up a Building Society Account for him into which about £200 per month is paid. These latter payments are not precisely regular and require him to decide whether and when to make a payment and how much it should be. He showed me the Passbook which revealed an account in his name on behalf of his son and showed a balance now accumulated of about £8,000. No drawings have been made from the account. It shows a sustained and prudent saving habit.
31. The Claimant is able to use a computer and has acquired one fairly recently with the help of his family. He explained to me that he is not as good with computers as he used to be and can no longer use Excel spreadsheets. He did tell me that he could type and create documents although he thought that this was done suing Works or Notepad or some "basic thing". He could not now use Microsoft Word. He has difficulty remembering basic operations and his brother Joe sometimes chides him about this. His explanation of his ability to use a computer was quite detailed and coherent and showed considerable insight into his disability. He also has a camcorder which he bought on the advice of his brother who showed him how to use it. He chose to buy the same model as his brother so that he would be able to do this. In the event, he has become proficient with it, as the DVDs which I have seen demonstrate. He bitterly resents using the memory strategies he is being taught, and does not see why he should write things down when this did not used to be necessary. However, there was evidence that he is beginning to do this more often.
32. The Claimant has been on holiday on two occasions which are particularly relevant, although he has been on other holidays. In the Summer of 2004 he visited Marseilles on two occasions, staying there with friends over a total period of about two months. During that time he returned once to the UK on his own, and then went back to France, also on his own. His family visited him and stayed with him and his friends for two weeks in August. In January 2005 he went to Australia, again on his own. He changed flights in Dubai on the way out, although I do not know how long he stayed there. In Australia he stayed with his Aunt who lives in or near Melbourne. He made all the travel arrangements himself, although his sister Gabriella did check that he had arranged a reasonable deal on the price of his flights. He had succeeded in doing that. It is said that he travelled with a doctor's note on these occasions, although I have not seen such a note. It is also said that the family asked the airline to check that he was not in difficulty. During these long holidays he managed his own money. He has a credit card, and must have had some method of drawing cash both in France and Australia.
33. The DVD footage shot on the Claimant's camcorder during these holidays has assumed an importance in the evaluation of the case by some of the experts. It was not as important for Dr. Scheepers as it was for some of the other witnesses. I have seen it. It shows the Claimant behaving normally both in France with his family and in Australia. He appears cheerful and appears to be interacting with the people he is with in an ordinary way. He is seen with children and there is no evidence that this was of concern to anyone. His presentation as everyone (including him) accepts is quite different from the description of him given to the Care Experts just before and after the Australian holiday. It is also quite different from the presentation to the experts he has seen for the litigation and, I think also, from the description of him in the clinical notes of Helen O'Neill and Dr. Brian Moffat who have been caring for him recently. This much is agreed, and I will return to the DVDs when I come to address the dispute in the case.
34. There is no evidence that the Claimant has ever made or threatened to make a bad financial decision. It is true, as pointed out by Mr. McCaul QC that he has had limited opportunity to make financial decisions because his finances are not complex. He does, however, have a significant income to dispose of and he also has a credit card. He has not got himself into debt, and he has not been giving his money away inappropriately. He gives in total £240 pcm, or thereabouts, to his son: he gives £40 directly and saves £200 or so in his savings account for him. He decided the amount of this giving, and it has been reasonable in that it has not caused him financial difficulties. The £40 paid directly is not an inappropriately large amount. He pays £400 for his keep, which seems a reasonable sum, and in addition makes contributions to the various bills of the household. I have, of course, carefully considered whether there is any sign that the family are profiting unreasonably from his presence in the house but can find no evidence that this is so.
35. His sister Giovanna Hume, his sister Gabriella Saulle, and his mother all consider that he is extremely difficult to live with. They all describe how their relations with him have changed. In the case of Mrs. Hume, that relationship has diminished substantially. In the case of the Claimant's mother, she tolerates his behaviour unconditionally even though he is violent towards her from time to time. Gabriella also finds him difficult to cope with, although she does manage to discuss his financial affairs with him and ensures that the decisions he takes are sensible. She has been managing the litigation for him as his litigation friend and has not experienced any difficulty in doing that. Matters need to be explained to him, and discussed with him, and he is then able to take decisions. He has a brother called Joe, from whom I did not hear. He is a successful business man in Germany and he has financial expertise. The Claimant has respect for him and seeks his advice about money, and told me that he would seek advice from his solicitor, Mr. Tim Woolford, and his brother Joe when he needed to decide how to invest the proceeds of this action. He has a good relationship with both these people, and it appears that his brother Joe is a useful source of such advice. Dr. Scheepers commented that he was impressed by the relationship between Mr. Woolford and the Claimant and felt that the Claimant had real respect for Mr. Woolford's views. It is a great credit to Mr. Woolford that this is so. As Dr. Scheepers said, it is not always the case by this stage in protracted litigation. I have to approach the question of capacity to control this litigation at this time, and the relationship between the Claimant and his solicitor is a matter to which I give some weight.
36. Therefore, the Claimant currently has a significant support network of people who care for him and who are able to explain matters to him and also to give him advice. The three expert witnesses who gave evidence to me all agree that although the Claimant's cognitive and intellectual functions are significantly impaired, and his memory is also significantly affected, these matters are not sufficiently serious to deprive him of capacity in law. I will take the terms of that agreement from Dr. Rose's evidence, in a passage which sets out the opinion to which he still adheres and which contains also the disputed opinion. In his first Report dated 17^th July 2002 he dealt with the Claimant's "capacity to effectively administer and manage his own property and affairs" and said, at page 188 of the Trial Bundle:-

"Intellectually he would appear to have made sufficient recovery to deal with these aspects of life. In reality his mental state at this time, and for many months past is sufficiently abnormal to render him incapable of managing his own property and affairs. On the basis of his behaviour during my attempted assessment he would not have the capacity to weigh treatment opportunities and make a balanced assessment."

37. Dr. Rose made it clear to me in his oral evidence that he considers that it is the Claimant's lack of adjustment to his situation and pathological grief reaction which leads him to the view that he lacks capacity. He agrees that the intellectual, cognitive and memory deficits are not severe enough to have that effect.

THE DISPUTE

38. The Joint Statement of Dr. Rose, Dr.Scheepers and Dr. Jacobson dating from July 2007 illustrates the dispute which I have to resolve. Dealing with Capacity to Manage his Property and Affairs first, the doctors wrote:

"5. Dr. Rose considers that he lacks capacity. He takes the view that the behaviour seen on all occasions bar the DVDs is representative of Mr. Saulle's common levels of ability and that he would not know, consistently and reliably, when he needed to seek advice, would not have sufficient control of his thinking or emotional state to take in remember and then weigh information or be able to take decisions and then act on those decisions.

6. In Dr. Scheepers and Dr. Jacobson's opinion, despite the Claimant's behaviour and presentation, the fact that he has an organic personality disorder and his executive problems, there is insufficient evidence demonstrating his incapacity to manage and administer his own affairs. As Dr. Scheepers discussed in his report, until such a time as there is evidence of incapacity, in his opinion, it is insufficient to base an assumption of incapacity on theoretical problems that may be anticipated as a consequence of his brain injury. Dr. Jacobson agrees with Dr. Scheepers and notes some evidence for financial capacity in Mr. Saulle's decision making over sending money to his son

INCAPACITY TO LITIGATE AND COMPROMISE CLAIM

7. Dr Rose considers that for the reasons already given above Mr. Saulle lacks this aspect of capacity also.

Clearly, if it were to be accepted that his (brief) appearances in the family DVDs is his norm and all other behaviours, witnessed over a period of more than 6 years and by many qualified practitioners of differing disciplines, (skilful) acting, then this opinion could not be accepted.

8. Dr. Jacobson, while noting that there is limited information on Mr. Saulle's interactions with his solicitor and handling of the litigation and no witness statements suggesting incapacity, considers that on the balance of probabilities Mr. Saulle has the capacity to litigate.

9. Dr. Scheepers considers that on the balance of probabilities Mr. Saulle has the capacity to litigate and refers to his previous opinion and his Report. In his opinion, if there was evidence that the Claimant was incapable of instructing Legal Counsel then it would be reasonable to have evidence of this in the form of Witness Statements from his solicitor and family. The absence of such evidence and the Claimant's expressed desire to manage his own litigation, in Dr. Scheepers opinion is sufficient reason to offer him every possible support and assistance to make his own decisions and to participate fully in the instruction of Legal Counsel. Finally, in Dr. Scheepers' opinion the Claimant's advisers and his treating clinicians are in a position to know when the Claimant has made a decision regarding the management of his affairs or the Litigation, which in their professional opinion is unwise, irrational and not in his best interest. In his opinion these professionals have a duty of care to request a reconsideration of the Claimant's capacity under such circumstances."

39. Dr. Rose said in evidence to me that he believed that the undoubted impairments to the intellectual functioning and memory were serious but that they could be overcome and did not require a finding of incapacity. He was concerned about the Claimant's ability to weigh information due to his mental state. In other words, the Claimant has the intellectual capacity to litigate and to manage and control the proceeds of the litigation, but his mental state prevents him from applying that intellectual capacity reliably. I therefore need to make some findings about the extent and impact of that mental state.
40. All the doctors consider that there is evidence of exaggeration. Dr. Skelton-Robinson, a Consultant Clinical Psychologist who has reported on 4 occasions, in February 2003, September 2003, January 2004, May 2007 and November 2007, detected a deliberate under-performance on psychometric testing in his Report of September 2003. He diagnosed factitious disorder with predominantly psychological signs and symptoms (DSM VI 300.16) as the reason for this, in addition to his other diagnoses. This diagnosis preceded the DVDs and knowledge of the Claimant's ability to go on holiday for long periods on his own. That new material has no doubt reinforced Dr. Skelton-Robinson's opinion. Dr. Rose accepts that there is unconscious exaggeration in the case, and Dr. Jacobson believes it to be deliberate.
41. The DVDs add to the picture and I have referred to them above. I consider that they show a significantly different presentation of the Claimant's condition from that which I saw in evidence and from that which has been presented to various experts over a number of years. In taking this view, I am stating the obvious and also the commonly held view of all experts who have considered them. I noted that there were times when the Claimant appeared to want the operator of the camera to stop filming him and made a suitable signal. I accept that holiday films will inevitably be somewhat self-selecting in that it is unlikely that the Claimant or anyone else would wish to record moments of confrontation or aggression. I also accept that it is likely on the medical and factual evidence which I have heard that such moments did occur during these holidays. I am not persuaded that it would be impossible to procure evidence from France or Australia to confirm the extent and severity of such outbursts. I do not therefore accept that matters were quite as grave as the Claimant suggested. Further evidence from this source might be available at trial which might change this, but on the evidence I have heard it seems to me that I should find that the holidays were broadly successful, but that outbursts did occur. I also conclude from the failure to mention the holidays to the Care Experts that the family, including the Claimant, decided not to mention them at that time because they knew that the Claimant's behaviour on holiday and his ability to look after himself while travelling was not consistent with the account they wished to give of his abilities. This decision is regrettable, in that it lacks candour, but it is rational and it is of a kind taken by some Claimants in personal injury litigation who are not suffering from any suggested incapacity. It is an unwise decision, but not, in itself, one which suggests lack of capacity to litigate.
42. The Claimant himself decided to disclose the DVDs. This was a decision taken in the litigation which was appropriate in that the court was thereby provided with more information than it would otherwise have had. It could be said that it was a decision which prejudiced his prospects in the litigation and thus suggested that he was not able to control it, but the explanation I have been given negates that conclusion. He said that he disclosed the DVDs because he wanted the Court to know how happy he was capable of being when on holiday so that the Court would understand the extent of his unhappiness when he was not on holiday. He has insight into his losses, and is only able to be free of his grief when he is not surrounded by reminders of them. I cannot conclude that this was irrational, and I note that his litigation friend agreed with the decision and helped him with it.
43. The DVDs show that the Claimant's mental state is rather more variable than some of the Reports and some of his other accounts would suggest. The fact that he can go on holiday and enjoy himself without getting into financial trouble suggests that there are periods when life is not quite so bad for him as it is at other times. It also suggests that he is able to make arrangements for himself and manage some financial transactions for himself. I also consider that it is unlikely that his family would allow him to do these things if his behaviour was invariably as bad as they sometimes suggest. For present purposes I find that the Claimant's mental state is variable and there are times when he is able to take decisions, but there are other times when he is afflicted by his adjustment disorder and grief reaction so that he becomes irrational and aggressive. I make no finding about the duration of the different mental states, save that I accept that the Claimant is adversely affected by his injuries to some extent at all times. During the times when he is irrational and aggressive he would be prone to making unwise decisions and if he insisted on making important decisions while in that state, he would probably, at that time and in respect of that decision, lack capacity.
44. The approach I have set out at paragraph 42 above is in line with Dr. Rose's oral evidence in which, according to my note, he said:

"I have no clear picture how often he is well. On balance I am prepared to accept that the videos represent the best ability he has. I am not sure that he exaggerates [deliberately] but it cannot be ruled out."

45. There is no evidence that the Claimant has ever sought to make an important decision while in an impaired mental state of the kind I have just described. As far as the evidence goes, he has enough control over himself and his thinking process to take his important decisions when he is able to do so. He has enough time when his mental state allows him to take decisions properly so that it is possible for him, with his family's advice and support, to wait until he has calmed down and is in a frame of mind to focus on the litigation or financial transaction at hand. It seems to me that although there are times when his mental state seriously affects his ability to take important decisions, this is not true most of the time.

APPLICATION OF THE TEST TO THE FACTS AND TO THE DISPUTE

46. Of the five principles set out in section 1 of the 2005 Act, those numbered (2), (3) and (4) are relevant to decisions about capacity. The remaining two principles apply once a decision that a person lacks capacity has been made. I shall set out the three relevant principles and explain how I have given effect to them in my decision. Although section 1(1) provides that the principles apply "for the purposes of this Act", I consider that they are integral to the statutory definition of incapacity at section 2(1) which is imported as the test by CPR Part 21 as I describe above. Importing the definition therefore imports the principles. In any event they are a very convenient statement of the principles which informed the common law test and their use should not lead to any different result from the application of that test.
47. 1(2): A person must be assumed to have capacity unless it is established that he lacks capacity. This means that the statutory assumption of capacity can only be displaced by evidence which proves a lack of capacity. Section 2(4) of the Act requires the issue to be determined on the balance of probabilities "In proceedings under this Act or any other enactment". As I have explained, these are not proceedings under the 2005 Act. This is an action for damages for negligence, and is not therefore "proceedings under any other enactment". At common law, the burden of proving incapacity fell on the person asserting it and the standard of proof was the balance of probability. Nothing in the new CPR Part 21 displaces this rule, and I shall apply it. There is no party asserting incapacity, but I have indicated above that the way in which the proceedings have been conducted enables the Court to assess the evidence for the proposition that the Claimant lacks capacity and to determine whether it proves that proposition or not on the balance of probability.
48. 1(3): A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. This involves focussing on the present state of affairs. Is the Claimant unable to make a decision, and, if so, have all practicable steps been taken to help him without success? In fact there is no evidence that he is unable to make a decision, and to the extent that he may be (because of his intellectual deficits and mental state), his family and his medical and legal advisers are able to provide support to ensure that he has proper explanations of information required for the decision, and that he takes decisions when he is in the right frame of mind to do so. There is no evidence that these steps have failed. On the contrary, the evidence from the family is that they have succeeded. I am aware that the Claimant's lawyers may be inhibited by legal professional privilege and their instructions from setting out their own personal knowledge of his capacity, but I have to decide the case on the evidence. This principle is to be read with section 3(2) of the Act which provides that the Claimant's capacity is to be judged on the assumption that he will receive an explanation of the information relevant to a decision given to him in a way that is appropriate to his circumstances. Provided that he has the capacity to understand such an explanation, then he is not to be regarded as being unable to take a decision.
49. 1(4): A person is not to be treated as unable to make a decision merely because he makes an unwise decision. This is an important principle based on the idea that a person should not be deprived of autonomy unless that course is necessary. Autonomy includes the right to make unwise decisions. In the present case the Court is not presented with a decision which the Claimant has made which is said to be unwise. Often that will be the situation, and it may arise here before the end of the litigation. If a situation were to arise where the Claimant insisted on accepting some wholly inadequate offer, or rejecting an obviously acceptable one, then the Claimant's lawyers would be placed in a difficult position. I suspect that they would have to return to Court with an application for a litigation friend which would be a specific application based on evidence of the Claimant's behaviour in relation to the offer. The problems of legal professional privilege and the constraints of their instructions would arise and it may be that then they would need to involve the Official Solicitor. However, as things stand there is no evidence before me that the Claimant has ever made an unwise decision, except perhaps his decision to discontinue his application for contact with his son. As to that decision, I have insufficient information on which to judge whether it was wise or not.
50. I therefore proceed, with these principles in mind, to consider the application of the statutory test to the first question before me, namely is the Claimant a "protected party" in that he is a party "who lacks capacity to conduct the proceedings"? In doing so, I have in mind all the matters which I mention above about the stage at which the proceedings have reached and the likely decisions which will be required of him. The question I have to answer is whether the Claimant now lacks capacity in relation to those decisions because he is unable to make them for himself because of an impairment of, or disturbance in the functioning of his mind or brain.
51. It follows from this test that the Court must focus on the matters which arise for decision now, and on the Claimant's capacity to deal with them now. I am required not to attempt to foretell the future and provide for situations which may arise when he may have to take some other decision at some other time when his mental state may be different.
52. In essence, Dr. Rose conceded in his evidence to me that his difference of opinion about the Claimant's capacity is heavily influenced by his concern about the future, rather than the present. He said that the Act requires the Court to assess the capacity of the Claimant and the Claimant's family. This is so in that the Act requires the Court to consider whether there are any sources of the kind of explanation mentioned in section 3(2) of the 2005 Act. Although that sub-section does not require that any such explanations are available, merely that the Claimant has the capacity to understand them, the actual availability of such explanations is clearly part of the considerations which arise under the principle at section 1(3) of the Act.
53. Dr. Rose is concerned that the Claimant is vulnerable and he said to Mr. Jeffreys QC in cross-examination that he was looking into the future, rather than basing himself on any event which had happened. He clearly has doubts about the wisdom of the Masterman-Lister test. He told me that he had been the first person to suggest that the Claimant in that case had lacked capacity. He pointed out that although the Court had not agreed with him, that Claimant became subject to the jurisdiction of the Court of Protection 12 months after that decision. He therefore implies that he was right all along. I have already pointed out with a citation from Kennedy LJ at paragraph 19 of his judgment that in those days the Court applied a different test for capacity from the old Court of Protection acting under Part VII of the 1983 Act, and the events which Dr. Rose describes do not necessarily mean that he was right, and Wright J and the Court of Appeal were wrong. Incapacity is a matter of legal classification based on medical and factual evidence. It is not a matter of diagnosis. At all events, his observation is specific to a particular case and I do not see it as justifying a rejection of the legal test used. Finally, the witness may have his doubts about the law, but the Court must apply it. Inevitably, a witness who applies himself to the matters which the Court is required to decide will be more authoritative when the decision comes to be made.
54. In dealing with Dr. Rose's views about the law I do not intend to convey any criticism of him. He has assisted the Court by giving, in an entirely balanced way, his genuinely held opinion. That is his duty. He is also clearly motivated by a genuine concern for the future of this Claimant. His opinion has enabled the Court to consider the Claimant's capacity and to make a finding about it after considering both sides of the argument. I consider that he may well be right when he suggests that there may be times in the future when the Claimant will lack capacity to make particular decisions, and note his concern that if that happens when he does not have the support of his family for any reason, he may not come to the attention of the Court of Protection until it is too late. This is a risk against which the old test for capacity used by the Court of Protection under Part VII of the 1983 Act used to guard. The modern law is different.
55. In any event, as I have made clear, my decision concerns this litigation and the decisions which must be taken now and over the next few months. These are times when the Claimant does have the support of his family and of his legal team. While the proceedings last, there is ready access to a Court to determine whether any change of circumstances requires the question of capacity to be reconsidered.
56. For these reasons, I reject Dr. Rose's conclusion that the Claimant lacks capacity in that it is not established that he is unable to conduct these proceedings. He is therefore not a protected party. In reaching this conclusion, I do not reject any of the rest of Dr. Rose's evidence. I find that he has not applied the right legal test to his medical diagnosis. If the correct test is applied, I find that it follows from the medical evidence of all 7 experts, including that of Dr. Rose, that the assumption that this Claimant has capacity is not displaced by evidence.

CONSEQUENCES

57. I have referred above to the powers relating to periodical payments which may afford this Claimant some protection against some of the contingencies which have troubled Dr. Rose.
58. I also draw attention to the proposition discussed in argument that where a person is held to have capacity because he is able to understand and seek suitable professional advice, as here, it may be necessary to include in the award a sum which is designed to enable him to retain such advisers. This head of award has been controversial in the past, but it is arguable that section 1(3) of the Act requires further consideration of it in a case where a person who has impaired mental capacity is held nonetheless to be a patient.
59. Finally, I have already drawn attention to the power of the Court to make an award in suitable cases to provide for the contingency that there may be some deterioration of the Claimant's condition which might require him to seek the assistance of the Court of Protection. This might be done by a provisional damages award or a discounted lump sum.
60. I have mentioned the matters set out in paragraphs 57-59 in order to demonstrate that the new system may offer some protection to people whose mental capacity has been in doubt, and who have been held to have capacity to manage litigation. These are not matters for me, but for the Claimant to consider in the light of advice he receives.