Court approves settlement terms in Will Waldron QC case
September 25, 2014
Will Waldron QC from Exchange Chambers has seen the court express approval of the terms of settlement for his client, LM, a man who was 19 when injured in a road traffic accident (now 26), sustaining serious brain injury.
LM was an unbelted passenger in a car, which ran out of control and hit a tree, causing him to be ejected from the vehicle. He suffered a change in personality and numerous behavioural difficulties, leading to socially inappropriate and challenging conduct. He required care and support with some case management.
A lengthy period of rehabilitation at a specialist unit had made a significant difference to his ability to cope with life. However, he is probably unemployable and he will require fluctuating degrees of support throughout his life, particularly should his present relationship break down or he becomes a father.
LM’s family support network is good and it is intended that gratuitous care continue for as long as possible, supplemented by professional care at about 21 hours per week on average.
Capacity was a complex area. Whilst all bar one expert considered the Claimant had capacity to litigate (and the expert forming a provisional view to the contrary had died a year prior to settlement and his replacement deferred to others), there was disagreement as to LM’s capacity to handle a large sum of money. The overwhelming majority view was that he was competent, but most thought the case to be “borderline”. Interestingly, close family and the Claimant’s father felt he had capacity because, despite his sometimes outlandish expressions of intent, he had not once been foolish with money and always listened to advice from his father on that score.
In the event, funds are to be invested in a trust, (a step the Claimant wished to take of his own accord) with recovery of a substantial sum to cover that event and any subsequent applications to the Court of Protection, should it become necessary.
Interestingly, the court questioned the seeking of approval in circumstances in which the Claimant was not a protected party and had not proceeded through a litigation friend. Understandably, the defendant wanted the security of approval, making settlement contingent upon that event and the Claimant’s advisors also saw benefit in that course.
One route would have been for the court to look at the question of capacity to litigate “on paper” and, if adjudging the Claimant to have capacity, make that finding. However, where there was no evidence to the contrary, the defence offer “subject to approval”, and the Claimant’s team neutral about the position, that course was not pursued. In the event, a Coles v Perfect ((2013) EWHC 1955 (QB)) type solution was reached, which resolved the question. The liability split reached for the failure to wear a seatbelt was 80/20 in the Claimant’s favour. Damages recovered at 80% were £1,600,000 (£2m on full liability).