Sun, 05 Aug 2012
By David Lock QC
Re SK: Handling difficult issues where there are parallel proceedings in the Court of Protection and High Court - Re: SK  EWHC 1990
A person who lacks capacity to make his own decisions about such matters as residence may also have a private law claim against the tortfeasor who caused the injury. When the personal injury claim is litigated in the Queen’s Bench Division, the level of damages for future care will depend on complex issues such as where P will be living and how much care will be provided by state organisations and whether P will have to pay charges for such services.
If there is a dispute about where P should live, the ultimate decision maker can become the Court of Protection and not the divisional court. It is inevitable however that decisions made in the Court of Protection will, at the very least, have a strong influence on the basis upon which damages will be awarded in the QB proceedings. Equally the care options that are available to consider in the Court of Protection proceedings may, to an extent, be influenced by whether funds to support that care option will be secured through the QB proceedings. Parties to the QB proceedings therefore often seek to maintain a keen interest in developments in the Court of Protection proceedings, although this can be difficult because as a general rule Court of Protection proceedings are held in private and only the parties to those proceedings will have the right to see the evidence in those proceedings.
The issue as to how practitioners should protect their client’s interests when there are complex, interlocking issues between the two sets of proceedings was considered for the first time by Mr Justice Bodey in the recent case of Re SK.
SK had suffered neurological problems when he was injured in two separate road traffic accidents. There were disputes between the local authority, the doctors and family members (which have yet to be finally resolved) as to whether SK had capacity to marry and which type of neurological interventions were in his best interests. Those disputes were properly referred to the Court of Protection where the Official Solicitor acted as SK’s litigation friend. SK, acting by his brother, commenced proceedings for his injuries in the High Court against the tortfeasor for the second accident and obtained a 60% recovery.
The course of treatment favoured by the treating doctors and the experts in the Court of Protection proceedings was less intensive neurological rehabilitation and would have only produced a small chance of SK being able to live independently in the community. Conversely, the neurological expert in the QB proceedings favoured intensive neurological rehabilitation which may have increased the chance of SK being able to live independently in the community. The damages calculations in the QB proceedings would be likely to be radically different depending on whether SK was or was not able to live independently in the community in the future.
The Official Solicitor, as SK’s litigation friend within the Court of Protection proceedings carefully considered the evidence and was not persuaded that the Court of Protection expert and treating doctors were wrong. Hence the Official Solicitor did not support the more intensive neurological rehabilitation option promoted by SK’s expert in the QB proceedings. No other party to the Court of Protection proceedings proposed to call this evidence and thus this option was not expected to be in evidence before the Court of Protection.
SK’s litigation friend in the QB proceedings, his brother CK, then sought permission to become a party to the Court of Protection proceedings in order to lead the evidence in favour of more intensive neurological rehabilitation. The Defendant to the QB proceedings, in reality their insurers, also applied for party status, arguing that it would be unfair if the Claimant to QB proceedings was before the Court of Protection where the Defendant was not represented.
It fell to Bodey J to untangle this complex procedural knot. The Judge produced a comprehensive judgment which may yet trouble the Court of Appeal*. However unless a different view is expressed by the Court of Appeal, the case provides the most up to date guidance on this common problem.
The Judge broadly supported the position of the Official Solicitor in saying that parties to the QB proceedings should not be permitted to take part in Court of Protection proceedings and so excluded both CK, as litigation friend in the QB proceedings, and the Defendant from the Court of Protection. The Judge decided:
• Only one person could speak for SK in the Court of Protection proceedings. Hence it was procedurally improper for CK, acting as litigation friend for SK in the QB proceedings, to ask to be a party to the Court of Protection proceedings so that he could give a different view on what SK’s best interests were. See Hardy and Lane Ltd v Chiltern 1928 KB 663 at 700 and Lewis v Daily Telegraph 1964 2QB 601 at 619.
• The Defendant insurers did not have a “sufficient interest” within rule 75 of the Court of Protection Rules to be joined as a party. Being potentially liable to pay the costs of a care package does not mean that the insurer has a sufficient interest in the best interests decision.
• Findings in the Court of Protection do not bind the Judge in the QB proceedings. The insurers were still entitled to argue in the QB proceedings that, amongst other arguments, the care package approved by the Court of Protection did not meet P’s reasonable needs or that the costs were not a loss for which their client was liable.
• The litigation friend in the QB proceedings, SK’s brother, did have a sufficient interest in the Court of Protection proceedings as SK’s brother and was entitled to advance his views in those proceedings. However it is implicit in this finding that he could not use the assets of SK’s estate (such as an interim payment) to pay his costs of doing so.
This is a pragmatic, sensible and careful judgment. It ensures that the only parties before Court of Protection proceedings are those that have a genuine interest in P’s best interests, as opposed to adopting arguments about what decisions should be made for P to support their commercial or other litigation interests.
*The Defendant’s insurers in the QB proceedings applied to the Judge for permission to appeal which was refused. It remains to be seen if they will appeal to the Court of Appeal.