Can a deputy withhold information about the size of a Personal Injury damages award?

The recent case of Re EXB v FDZ [2018] EWHC 3456 (QB) answers the question as to whether a deputy can withhold information about the size of a PI damages award from the claimant in his best interests.

Background

The High Court was asked to approve a settlement of a personal injury damages claim because the claimant (Peter) had sustained a brain injury in a car accident and was a protected party.

Peter who is in his 20’s, retained virtually a full life expectancy and the settlement was a significant sum.

The Court was also asked to make an order preventing the disclosure of the amount of the settlement to Peter as knowing the size of the award was not felt to be in his best interests.

Peter’s mother and deputy were concerned that should he know the size of the award, that this would diminish rapidly and there would be insufficient funds left to meet his support needs.

Peter’s friends were involved in criminal activity including drug taking. As well as the concerns of Peter’s mother and deputy, treating professionals were concerned about him knowing the size of the award given that he was vulnerable, impressionable and unable to control his impulses, in particular to spend money.

Peter himself said that it was better he did not know the size of the award although his views on this were not consistent.

From the deputy’s perspective, it would be hard to maintain a good relationship with Peter if he was seen as refusing to disclose the size of the award rather than presenting it as something he had to comply with as it had been ordered by the Court.

The Court’s decision

The judge sat as a judge of both the Queen’s Bench Division and the Court of Protection.

Due to his brain damage, Peter was unlikely to have capacity in the future.

The judge held that it was in Peter’s best interests for the deputy to withhold information about the size of the damages award. Overwhelming evidence showed that knowing the exact amount of the award would lead him to treat the settlement as a lottery win. Given Peter’s vulnerabilities, knowledge of his award, might lead to pressure from others to spend or give away money recklessly and impulsively.

It would be for Peter’s deputy to draw the attention of the order to anyone he knows has knowledge of the settlement amount. An injunction preventing any person who knew the size of Peter’s settlement from disclosing that to him would not be appropriate. It is not clear how this will be policed or how any breach would be dealt with.

What next?

This appears to be the first instance where information about the size of a damages award has been withheld from a claimant in their best interests by order of the Court.

It will be interesting to see whether any similar orders are made in the future. Potentially, a similar order could be made to the trustees of a Personal Injury Trust.

The judgment has been sent to others including the Vice-President of the Court of Protection so that they can consider whether any consultation on this issue is required and whether any action needs to be taken as a result.

For more information on Deputyships and Personal Injury Trusts and how we can help please contact our Court of Protection team by email on cop@boyestuner.com