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PSG Trust Corporation v CK [2024] EWCOP 14

Justin Holmes, instructed by the Official Solicitor, was successful in PSG Trust Corporation v CK [2024] EWCOP 14, a decision of Hayden J, which considered the circumstances in which knowledge of the size of her compensation fund could be withheld from P. It is not uncommon, particularly in brain injury cases, for survivors to be left vulnerable to financial and emotional abuse, and in some such cases P’s deputy (often with the support of P’s family) has taken the view that it would be in P’s best interests to keep P ignorant of the size of her compensation fund, so that P herself will not be able to tell people about it and attract unwelcome interest from people who wish to exploit her. In EXB v FDZ [2018] EWHC 3456 Foskett J agreed on the approval of a compromise of EXB’s compensation claim to make an order that P should not be told the value of his compensation fund, and according to the Professional Deputies Forum similar orders are often made; see also DXW v PXL [2019] EWHC 2579, a decision of Saini J. In his judgment in the CK case, Hayden J held that before making such a decision on P’s behalf, a deputy should consider whether P has capacity to make the decision herself: the deputy should first consider whether P has sufficient understanding of her own vulnerability and of the other factors affecting the decision to decide for herself whether or not she wants to know the value of her award. It is only if P does not have that capacity that a best interests decision should be made by the deputy. One interesting potential factor in that decision is the possibility that P might have capacity to make a will or pre-nuptial agreement and might therefore have a need to know the value of her fund. Hayden J doubted the suggestion made by David Rees KC in PBM v TGT [2019] EWCOP 6 that if P had capacity to make a prenuptial agreement his capacity to decide whether to request knowledge of the size of his fund should be automatically presumed.

Read the full judgement here.