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Capacity to litigate: useful tools for the expert when assessing capacity to litigate

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Capacity to litigate: useful tools for the expert when assessing capacity to litigate

As part of their assessments, medical experts, particularly expert neuropsychologists, are commonly asked to provide an opinion as to whether the Claimant has capacity to litigate.

This has practical implications, including whether Court proceedings should be issued in the sole name of the Claimant or the Claimant proceeding by a Litigation Friend, from whom the solicitor should take instructions and the requirement for the Court to approve any settlement reached between the parties in relation to a Protected Party.

Often, the Claimant’s solicitor will have good insight into whether the Claimant is able to understand, remember, weigh up and provide instructions on the legal advice that they have provided to their client. This can present a dilemma in borderline cases, as any information as to what the Claimant has/had not understood or remembered (especially any clear misunderstandings of legal advice) is highly relevant to the expert’s opinion. However, the meetings between the Claimant and their solicitor are, by their nature, privileged. It would not, therefore, be appropriate for the expert to explicitly refer to such meetings in their report, lest privilege be waived on the content of those meetings.

Therefore, rather than refer to specific details of a discussion between the Claimant and their solicitor in a report addressing the capacity of the Claimant to litigate, we suggest that one appropriate course of action might be for the expert to artificially construct certain scenarios which are analogous to the advice that might be given in any case. The expert might ask the Claimant to recount the information to the expert at intervals throughout the assessment, to assess whether, and the extent to which, the Claimant is able to understood, remember, weigh up and provide instructions based upon it. The expert might then provide an opinion based on the outcome of that exercise, in addition to any other evidence on the issue, including performance on neuropsychological testing.

For the purposes of assisting the expert with this exercise, we have suggested below a non-exhaustive list of legal issues that a Claimant might need to consider when providing instructions in a TBI case.

  1. The burden and standard of proof. The onus is on the Claimant to prove each aspect of their case on the balance of probabilities (ie 51%).
  2. Any risk of losing the claim. If, for example, we assess the prospects of success as 70%, that means there is a 30% chance the claim will fail and the Claimant will receive nothing. In arbitrary mathematical terms, we might apply a 30% discount to our estimated value of the claim when calculating the settlement value. This might be agreed explicitly between the parties, or privately born in mind by the parties when negotiating a monetary settlement. In some ways, this can be viewed as quite a crude approach, as not all Claimants’ attitudes to risk are the same and some might prefer to receive ‘something’ rather than risk receiving nothing.
  3. Any risk of a finding of contributory negligence and the likely amount of any deduction. This relates to an allegation by the Defendant that, even if primary liability is established against the Defendant, the Claimant contributed to the accident and a percentage deduction should be applied to their damages to reflect their level of ‘blameworthiness’ (eg a liability apportionment of 80%/20% in favour of the Claimant will mean that they recover 80% of the full value of their claim). The onus is on the Defendant to prove an allegation of contributory negligence. This can be (and often is) entwined with the issue of the risk of losing altogether and it might be, for example, that a risk of losing of around 30% plus a likely finding of contributory negligence of 20% would lead a settlement of 50%/50% being contemplated, in which case, the Claimant would receive half of the full value of their claim.
  4. The implications of an offer being accepted. Normally, settlements are ‘full and final’ and neither party may re-open the case in future (ie the Claimant may not ‘come back and ask for more’, even if their needs transpire to be greater than expected at the time of settlement – *but see below re. provisional damages).
  5. What happens to any benefits they have received as a result of their injury. Normally, Defendants’ offers are expressed in gross terms and any benefits received by the Claimant as a result of the injury are deducted and refunded to the DWP before the net amount is paid to the Claimant. Does the Claimant understand this and the concept of “double recovery”?
  6. What happens to any interim payments of damages they have received. They are deducted from the gross offer, so the Claimant will receive the offer net of interim payments. In many cases, the Claimant will not have received interim payments directly, as they may have been sent to the Claimant’s solicitors and used to fund ongoing rehabilitation.
  7. The implications of a finding that a Claimant has / does not have capacity to litigate. If a Claimant has capacity to litigate, they can accept an offer contrary to legal advice, if they wish. If they lack capacity to litigate, that is less straightforward, as the Court would need to approve any settlement between the parties. In practice, the Claimant’s barrister prepares an advice to the court recommending approval, which is often accepted but can be challenged and rejected by the Court. If appropriate, this can be used as a bargaining tool to persuade the Defendant to make an offer which Counsel is prepared to recommend for approval.
  8. The implications of a finding that a Claimant has / does not have capacity to manage their finances. A Claimant who lacks capacity to manage their finances will need a Deputy, normally a professional in high value cases, which can cost several hundred thousand pounds over a lifetime (although the evidence might suggest that the Claimant will (re)gain capacity, in which case, a Deputy might be required only for a limited period). This issue can often be contentious due to the financial implications and can make it more challenging for the parties to reach a compromise, particularly if liability is a live issue.
  9. Provisional damages. The exception to the rule that settlements are ‘full and final’ is where the Claimant is able to prove that, as a result of the injury, they are at greater risk of developing a health condition that, were it to transpire, would result in their damages for, say, care, loss of earnings etc., no longer being sufficient. In those circumstances, the Claimant may seek an award of Provisional Damages, which enables them to reopen the case to seek further damages to pay for those additional needs, should they develop. An example in brain injury cases is where there is an elevated risk of developing epilepsy that is not controlled by medication. Defendants’ insurers are often reluctant to agree to Provisional Damages, as they prefer not to have the possibility that the case will be reopened in future. Settlements between the parties, therefore, rarely (but not never) include Provisional Damages. Any settlement without Provisional Damages must be viewed as sufficient to ‘buy off’ any risk. Whether to accept a settlement offer not including Provisional Damages or to decline it with a view to seeking an Order for Provisional Damages at the risk of the case becoming more protracted and potentially receiving less damages will depend on the attitude of the individual Claimant to risk.
  10. Form of Award – Damages may be either a lump sum award or, in appropriate cases, a lump sum plus Periodical Payments, which are annual payments to the Claimant, usually to pay for future care and case management needs, particularly in high value cases. There are many advantages of Periodical Payments. For example, they continue for as long as required for that particular loss, are tax free and are normally calculated in a way that matches inflation for that particular loss. Disadvantages include that that they cease upon the Claimant’s death and that the lump sum of damages available for investment is smaller. The Claimant must be able to weigh up the pros and cons of each form of award, taking into account their own particular circumstances.

Not all issues will apply to every case and experts must be free to use their judgment to assess the Claimant as they see fit to enable them to fulfil their obligations to the Court, but some or all of the above may be useful tools for the expert when assessing the difficult, and often controversial, issue of capacity to litigate.

David King of Irwin Mitchell

David King is an Associate Solicitor in the Serious Injury team at Irwin Mitchell’s Leeds office. He specialises in helping people who have suffered traumatic brain injuries, often as a result of a road accident or an accident at work.

Irwin Mitchell are a national law firm whose solicitors work hard to make things easier for their clients and their family. Over the past 2 years they have helped clients recover more than £1 billion in compensation, but this is only part of the story, their solicitors also help clients access the rehabilitation, medical care and support needed to achieve the best recovery possible.

How can Brain Injury Group help?

If you have been injured in an accident and would like a free, no-obligation chat with a specialist brain injury solicitor about the circumstances surrounding your accident, please email, telephone 0330 311 2541 or visit our website to access live chat.

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