21st June 2016
Marcus Grant (instructed by Tom Ranson of Ashtons Legal) appeared for the Claimant. Alex Glassbrook (instructed by Gurbir Thethy of DWF LLP) appeared for the Defendant.
The claim involved a middle aged man who sustained a severe traumatic brain injury in a running down accident. The Parties agreed to settle the claim on a combined lump sum and Periodical Payment Order basis with periodical payments being agreed in respect of future claims for loss of earnings, case management and care / support worker provision.
The Claimant had been found to lack capacity to litigate or manage his own affairs and a Deputy had been appointed by the Court of Protection. However, it was agreed between the parties that the Claimant’s capacity to manage his affairs might fluctuate during his lifetime, so leading to the possible cessation of Court of Protection costs and even their subsequent resumption at as yet unknown times.
The Parties applied the judgment of Mrs Justice Swift in AA -v- CC and the MIB  EWHC 3679 to provide for future medical examinations going to capacity and thereby a “stop-start” device for the Court of Protection charges. Those featured in the Schedule to the Tomlin Order. The Court in AA had ruled that such a device could not have been ordered by the court against the opposition of one or both parties, but could be approved if agreed between the parties.
The Court approved the Tomlin Order. The Court also acceded to an application by the Claimant to make an anonymity Order in respect of his identity pursuant to the guidance in JXMX v. Dartford and Gravesham NHS Trust  EWCA Civ 96.