The Council, relying on a recent Court of Appeal judgment in relation to double recovery, compelled P's deputy to make an application to the Court of Protection for authorisation to apply for public funding. (1) The application was misconceived in seeking to apply the recent CA decision to this case which had been determined six years previously; (2) the Court of Protection is not an appropriate forum to adjudicate on double recovery in personal injury proceedings.
Mark Reeves was injured in a road traffic accident in October 1985 shortly before his eighteenth birthday. There was a trial on quantum before His Honour Judge Oliver-Jones QC in April 2003, but the damages awarded (£2,529,630) failed to beat the defendant’s payment into court, and the claimant had to pay the costs of the trial. He currently resides at the Transitional Rehabilitation Centre (TRU) in Merseyside, and his deputy applied to St Helen’s Council for assistance in funding his care. The Council compelled the deputy to make an application to the Court of Protection for authorisation to apply for public funding, and was relying on a recent decision of the Court of Appeal in Peters v East Midlands SHA  EWCA Civ 145, in which Lord Justice Dyson had accepted a deputy’s undertaking to apply to the Court of Protection as “an effective way of dealing with the risk of double recovery”. The Senior Judge held that the application was misconceived in seeking to apply the recent decision in Peters to a case that had been determined six years previously, and also intimated that, despite the dicta of Lord Justice Dyson, the Court of Protection is not really an appropriate forum to adjudicate on matters relating to double recovery in personal injury proceedings.
No Bailii link
Court of Protection: 2009 Report - published 10/6/10 - Summary on pages 17-18
OPG, 'In Touch: The newsletter for Deputies', Summer 2009 - This document contains the guidance approved by the judge in this case ('The Peters case does not affect the situation in which a damages award including the costs of future care was made in the past without any undertaking of the kind just described above being given.')