Monday, 9 May 2016

Incapacity, Illegality and Recoverability


  • A defendant may be liable for Court of Protection and Deputy costs even if its negligence did not cause the claimant's incapacity to manage his own affairs.

  • A claimant may "regain"capacity to manage his affairs once the initial, most difficult aspects of management of a large award are accomplished.

  • If a claimant's incapacity arises from illegality, then the defendant may not be liable for the costs consequent upon such incapacity.



These were three important aspects of a recent clinical negligence quantum judgment that also covered many other issues including the assessment of reduced life expectancy.




In AB v Royal Devon and Exeter NHS Foundation Trust [2016] EWHC 1024 (QB) Irwin J heard the case of an ill-fated claimant who had suffered serious neurological injury from a spinal abscess. He alleged that there had been delay in diagnosing and treating the abscess. Liability was compromised for 60% of damages to be assessed.

The claimant had a long history of drug taking and criminality. His drug abuse, personality and difficulty personal history combined with other, less significant factors, contributed to serious psychological problems.

He was found to lack capacity to manage his own affairs for the first year after an award. That period would involve difficult decision-making concerning the setting up arrangements for the future, the purchase of equipment and transport and re-fitting accommodation. After one year the decision-making would become less complex and the claimant would have capacity to manage his affairs going forward unless he reverted to abusing illegal drugs. If he did so then the defendant should not be liable for such future incapacity and the associated costs. Hence future costs of the Court of Protection were allowed for a period of one year only.

That finding might be thought to have wider ramifications. If capacity is "borderline" in respect of the management of affairs post settlement/judgment, then might capacity be "regained" once the initial set up work is completed. Certainly that is something that experts should be asked to address.


Irwin J applied dicta of Lord Hoffman in Gray v Thames Trains  where he referred to the wider rule of ex turpi, namely "you cannot recover for damage which is the consequence of your own criminal act.

The claimant's pre-trial lack of capacity was held to be attributable to his abuse of illegal drugs. The defendant raised arguments concerned with causation and lack of foreseeability, but Irwin J seems to have preferred application of the wider ex turpi rule: