MASTERMAN-LISTER V BRUTTON & CO. (NOS 1 AND 2) [2002] EWCA Civ 1889 MASTERMAN-LISTER V JEWELL AND ANOTHER [2003] EWCA Civ 70
FACTS:-
The Claimant suffered serious head injuries at the age of 17 on the 9th September 1980 when he was involved in a road traffic accident. He commenced an action on the 24th December 1980 with his father as litigation friend, but adopted the action himself after reaching the age of 18 on the 24th July 1981. In September 1987, after receiving advice from his solicitors and counsel, he accepted an offer to compromise his claim for £76,000 plus costs.
In December 1993, the Claimant issued proceedings against his former solicitors claiming damages for professional negligence and breach of contract. The writ was not served until May 1996. Liability was denied. In June 1997, the Claimant was examined by a neuropsychiatric rehabilitation consultant, who expressed the view that since the time of his accident, the Claimant had been a “patient” within the meaning of section 94(2) of the Mental Health Act 1983.
The Claimant also sought to reopen the settlement of his earlier claim on the ground that it had never received the approval of the court. The trial judge ruled that the Claimant had been a patient from three years after the accident, but not thereafter and that he had full capacity when the first action was compromised.
HELD:-
Lord Justice Kennedy went over the facts of the case. He considered the old Rules of the Supreme Court Order 80, which defined a patient as someone who was “incapable of managing and administering his property and affairs.” Rule 2(1) provided that a person under a disability could not bring or make a claim except by a next friend and Rule 10 provided for approval to be sought from the court to any settlement.
There was no criticism of those who had originally advised the Claimant, for failing to recognise that the Claimant was a patient. It was simply contended that from the date of the accident, the Claimant was a patient, who could only settle his claim with the approval of the court.
First it had to be recognised that someone who was treated as a patient for the purposes of Order 80 was not necessarily and might never become accepted by the Court of Protection as a patient pursuant to section 94(2) of the Mental Health Act 1983. Section 94(2) required a nominated judge to address that issue, whereas under Order 80, no judicial officer had to consider medical evidence or be satisfied as to incapacity.
Secondly the issue of capacity was important in relation to the Claimant’s ability to sue his former solicitors during the six years after September 1987, and the limitation provisions of section 28(1) of the Limitation Act 1980.
The Claimant’s counsel submitted that the Claimant was a patient for the purposes of the new Civil Procedure Rules (which replaced the Rules of the Supreme Court in 1999) and in particular CPR Rule 21.1(2)(b). The wording was different insofar the CPR referred to “own affairs” as opposed to the words “property and affairs” in the old RSC.
Lord Justice Kennedy said that the Official Solicitor acted at any one time for some 1700 patients in civil and family proceedings.
There was no definition in the Mental Health Act 1983, in the Rules of the Supreme Court or in the Civil Procedure Rules of the words “incapable of managing and administering…..his affairs” but in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 it was held that this did not extend to physical care and/or treatment. It included “only business matters, legal transactions and other dealings of a similar kind.”
It was common ground that there was a presumption of capacity. However Lord Justice Kennedy said that he did not accept a presumption that incapacity continued after a finding of incapacity.
Wilberforce J in In Re CAF (unreported) (Unreported) 23rd March 1962 held that, when considering a person’s capacity to manage and administer his property and affairs, it was necessary to have regard to the complexity and importance of that person’s property and affairs. Boreham J had said in White v Fell (Unreported) 12th November 1987 that the phrase “incapable of managing her own affairs and property” should be construed in a common sense way as a whole. There were three questions:-
It was accepted that this was the right approach.
An application to the Court of Protection under Part VIII of the Mental Health Act 1983 was different. There the judge had to consider the totality of the property and affairs of the alleged patient. A significant part of the property might be taken out of the patient’s control but the patient might still have control in relation to matters which he could handle.
In the case of White Wright J had said that the court should only take over the individual’s functioning when it was shown on the balance of probabilities that he did not have the capacity sufficiently to absorb and retain information relevant to the matters in quest, sufficiently to enable him to make decisions based upon such information.
Kennedy LJ then considered other cases, including In re C (Adult: Refusal of Treatment) [1994] 1 WLR 290 where a paranoid schizophrenic sought an injunction to prevent amputation of his infected leg without his written consent. Thorpe J had pointed to three stages to the decision making:-
The test was issue specific, that was to say the requirement to consider the question of capacity in relation to the particular transaction (its nature and complexity) in respect of which the decisions as to capacity fell to be made. It was not difficult to envisage Claimants in personal injury actions, with capacity to deal with all matters up to judgment, but lacking capacity to decide how to administer a large award. In such a case, Kennedy LJ could see no justification for the assertion that the Claimant was to be regarded as a patient from the commencement of proceedings.
Causation was not an issue in this case. Capacity in one context did not bind a court which had to consider the same issue in a different context. Any medical witness asked to assist in relation to capacity, therefore needed to know the area of the alleged patient’s activities in relation to which his advice was sought. The final decision as to capacity rested with the court, but the court would need medical evidence to guide it.
The next question was when the issue of capacity should be raised. Kennedy LJ said that a responsible solicitor acting for a Claimant or Defendant should seek medical opinion if he had doubts. However what happened if the Claimant lacked capacity but no-one recognised that fact? The CPR was so worded to say that the litigation was ineffective and decisions made in the course of the litigation were invalid. However under CPR Rule 21.3 the court could order otherwise and so regularise the position retrospectively as was done in Kirby v Leather [1965] 2 QB 367. Provided that everyone has acted in good faith, and there has been no manifest disadvantage to the party subsequently found to have been a patient at the relevant time, the court should approve steps taken retrospectively.
In this case, the Claimant had been examined by a number of doctors and only one had raised the issue of capacity. Kennedy considered the medical evidence of a number of consultants. The trial judge had had before him a mass of documentary evidence, including in particular his diaries throughout the relevant period and letters. It was interesting that whilst there was evidence of irrational and irresponsible behaviour, the Claimant had been able to conduct civil litigation without there being any suggestion of lack of capacity. He had learned to drive, type and had obtained two passes at O level. The evidence did not show a lack of capacity. Therefore the appeal would be dismissed.
Lord Justice Potter agreed.
Lord Justice Chadwick also agreed. The authorities were unanimous in support of two broad propositions, first that the mental capacity required by the law was capacity in relation to the transaction to be effected. Secondly what was required was the capacity to understand the nature of that transaction when it was explained. There was nothing in the Rules of the Supreme Court to alter the substantive law.
For the purposes of Order 80 – and now CPR Part 21, the test to be applied was whether the party to legal proceedings was capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case might require, the issues on which the consent or decision was likely to be necessary in the course of those proceedings.
Chadwick LJ found it of particular significance that two experienced solicitors did not recognize the need to the appointment of a litigation friend, and no criticism was made of either in that respect.
FACTS:-
The Claimant suffered serious head injuries at the age of 17 on the 9th September 1980 when he was involved in a road traffic accident. He commenced an action on the 24th December 1980 with his father as litigation friend, but adopted the action himself after reaching the age of 18 on the 24th July 1981. In September 1987, after receiving advice from his solicitors and counsel, he accepted an offer to compromise his claim for £76,000 plus costs.
In December 1993, the Claimant issued proceedings against his former solicitors claiming damages for professional negligence and breach of contract. The writ was not served until May 1996. Liability was denied. In June 1997, the Claimant was examined by a neuropsychiatric rehabilitation consultant, who expressed the view that since the time of his accident, the Claimant had been a “patient” within the meaning of section 94(2) of the Mental Health Act 1983.
The Claimant also sought to reopen the settlement of his earlier claim on the ground that it had never received the approval of the court. The trial judge ruled that the Claimant had been a patient from three years after the accident, but not thereafter and that he had full capacity when the first action was compromised.
HELD:-
Lord Justice Kennedy went over the facts of the case. He considered the old Rules of the Supreme Court Order 80, which defined a patient as someone who was “incapable of managing and administering his property and affairs.” Rule 2(1) provided that a person under a disability could not bring or make a claim except by a next friend and Rule 10 provided for approval to be sought from the court to any settlement.
There was no criticism of those who had originally advised the Claimant, for failing to recognise that the Claimant was a patient. It was simply contended that from the date of the accident, the Claimant was a patient, who could only settle his claim with the approval of the court.
First it had to be recognised that someone who was treated as a patient for the purposes of Order 80 was not necessarily and might never become accepted by the Court of Protection as a patient pursuant to section 94(2) of the Mental Health Act 1983. Section 94(2) required a nominated judge to address that issue, whereas under Order 80, no judicial officer had to consider medical evidence or be satisfied as to incapacity.
Secondly the issue of capacity was important in relation to the Claimant’s ability to sue his former solicitors during the six years after September 1987, and the limitation provisions of section 28(1) of the Limitation Act 1980.
The Claimant’s counsel submitted that the Claimant was a patient for the purposes of the new Civil Procedure Rules (which replaced the Rules of the Supreme Court in 1999) and in particular CPR Rule 21.1(2)(b). The wording was different insofar the CPR referred to “own affairs” as opposed to the words “property and affairs” in the old RSC.
Lord Justice Kennedy said that the Official Solicitor acted at any one time for some 1700 patients in civil and family proceedings.
There was no definition in the Mental Health Act 1983, in the Rules of the Supreme Court or in the Civil Procedure Rules of the words “incapable of managing and administering…..his affairs” but in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 it was held that this did not extend to physical care and/or treatment. It included “only business matters, legal transactions and other dealings of a similar kind.”
It was common ground that there was a presumption of capacity. However Lord Justice Kennedy said that he did not accept a presumption that incapacity continued after a finding of incapacity.
Wilberforce J in In Re CAF (unreported) (Unreported) 23rd March 1962 held that, when considering a person’s capacity to manage and administer his property and affairs, it was necessary to have regard to the complexity and importance of that person’s property and affairs. Boreham J had said in White v Fell (Unreported) 12th November 1987 that the phrase “incapable of managing her own affairs and property” should be construed in a common sense way as a whole. There were three questions:-
- Is the person capable of managing and administering their property and affairs? Do they have the insight and understanding of the fact that they have a problem in respect of which they need advice?
- Can the person, having identified the problem, instruct an adviser with sufficient clarity to enable them to understand the problem and to advise appropriately
- Can the person make decisions based upon, or otherwise give effect to, such advice as that person may receive.
It was accepted that this was the right approach.
An application to the Court of Protection under Part VIII of the Mental Health Act 1983 was different. There the judge had to consider the totality of the property and affairs of the alleged patient. A significant part of the property might be taken out of the patient’s control but the patient might still have control in relation to matters which he could handle.
In the case of White Wright J had said that the court should only take over the individual’s functioning when it was shown on the balance of probabilities that he did not have the capacity sufficiently to absorb and retain information relevant to the matters in quest, sufficiently to enable him to make decisions based upon such information.
Kennedy LJ then considered other cases, including In re C (Adult: Refusal of Treatment) [1994] 1 WLR 290 where a paranoid schizophrenic sought an injunction to prevent amputation of his infected leg without his written consent. Thorpe J had pointed to three stages to the decision making:-
- To take in and retain treatment information
- To believe it
- To weigh that information, balancing risks and needs
The test was issue specific, that was to say the requirement to consider the question of capacity in relation to the particular transaction (its nature and complexity) in respect of which the decisions as to capacity fell to be made. It was not difficult to envisage Claimants in personal injury actions, with capacity to deal with all matters up to judgment, but lacking capacity to decide how to administer a large award. In such a case, Kennedy LJ could see no justification for the assertion that the Claimant was to be regarded as a patient from the commencement of proceedings.
Causation was not an issue in this case. Capacity in one context did not bind a court which had to consider the same issue in a different context. Any medical witness asked to assist in relation to capacity, therefore needed to know the area of the alleged patient’s activities in relation to which his advice was sought. The final decision as to capacity rested with the court, but the court would need medical evidence to guide it.
The next question was when the issue of capacity should be raised. Kennedy LJ said that a responsible solicitor acting for a Claimant or Defendant should seek medical opinion if he had doubts. However what happened if the Claimant lacked capacity but no-one recognised that fact? The CPR was so worded to say that the litigation was ineffective and decisions made in the course of the litigation were invalid. However under CPR Rule 21.3 the court could order otherwise and so regularise the position retrospectively as was done in Kirby v Leather [1965] 2 QB 367. Provided that everyone has acted in good faith, and there has been no manifest disadvantage to the party subsequently found to have been a patient at the relevant time, the court should approve steps taken retrospectively.
In this case, the Claimant had been examined by a number of doctors and only one had raised the issue of capacity. Kennedy considered the medical evidence of a number of consultants. The trial judge had had before him a mass of documentary evidence, including in particular his diaries throughout the relevant period and letters. It was interesting that whilst there was evidence of irrational and irresponsible behaviour, the Claimant had been able to conduct civil litigation without there being any suggestion of lack of capacity. He had learned to drive, type and had obtained two passes at O level. The evidence did not show a lack of capacity. Therefore the appeal would be dismissed.
Lord Justice Potter agreed.
Lord Justice Chadwick also agreed. The authorities were unanimous in support of two broad propositions, first that the mental capacity required by the law was capacity in relation to the transaction to be effected. Secondly what was required was the capacity to understand the nature of that transaction when it was explained. There was nothing in the Rules of the Supreme Court to alter the substantive law.
For the purposes of Order 80 – and now CPR Part 21, the test to be applied was whether the party to legal proceedings was capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case might require, the issues on which the consent or decision was likely to be necessary in the course of those proceedings.
Chadwick LJ found it of particular significance that two experienced solicitors did not recognize the need to the appointment of a litigation friend, and no criticism was made of either in that respect.