Forget the carers, I want a Rolex!

In the last twelve months there have been three reported decisions on whether brain damaged claimants in personal injury proceedings should be told the amount of compensation they have been awarded (EXB v FDZ [2018] EWHC 3456, PBM v TGT & X Local Authority [2019] EWCOP 6, and DXW v PXL [2019] EWHC 2579).

Each case should be judged on its own facts, of course, but the two High Court judgments struck me as being paternalistic – whereas the decision of Francis J in the Court of Protection (COP) is unashamedly disability rights-based.

The inconsistency of approach illustrates what a minefield this is, and it brings to mind a fleeting encounter I had with one of these young millionaires back in 2002.

The claimant must be about 40 years old now. After leaving school, he worked in a warehouse in north London and suffered a traumatic brain injury when he was thrown from a forklift truck. He was 18 at the time.

Fieldfisher acted for him in a personal injury claim against his employer and it settled five years later for £2m. The claimant was a difficult person to deal with and, as no other suitable person was willing and able to act as his receiver, the COP had to appoint a ‘panel receiver’ (now known as a ‘panel deputy’) to manage his property and financial affairs.

The receiver requested an attendance with me to discuss the future management of the award, and I met her and the claimant on 15 May 2002. The claimant produced a handwritten list of “needs and wants” which began with: “House/Apartment in England. Villa in America. Villa in Turkey.”

Although the lion’s share of the award (£1.6m) had been set aside to cover the future costs of care and case management, he was adamant he didn’t need a care regime or a case manager. What he required, instead, were: “Cleaners, chef, car, limo, and chauffeur.”

He wanted a multi-gym so he could keep fit; and had also earmarked funds to acquire two businesses: “Club (ie discotheque), and a Karate Club for my sister when she reaches the age to teach once she’s graded to her black belt.”

The remaining items on his list were: “Rolex watch, rings, chains, bracelets and, last but not least, an executive box at Arsenal.”

He had estimated the cost of each of these necessities, and the total came to precisely £2m. I told him that regrettably he couldn’t have everything on his wish list, because damages awards are intended to last an entire lifetime and have to be used primarily for the purposes for which they have been assessed.

Nevertheless, I conceded that on the successful conclusion of five years’ personal injury litigation, the court usually allowed claimants to celebrate by, maybe, throwing a special party or experiencing the holiday of a lifetime.

He had no burning desire to fork out on festivities or to go swimming with dolphins in Florida, so I said: “OK, you can have a Rolex.” “How much?” he asked. “Let’s say £5,000,” I replied. (I have friends who collect luxury watches which, I am told, retain their value and can even be a sound investment.)

He eyeballed me across the table and enquired menacingly: “Where’s the cash?” I said it didn’t work like that and suggested he go to a reputable jeweller, select the watch he wanted and tell the sales assistant to settle the bill with his receiver.

He did so – and three days later, he returned to the store and traded in the £5,000 Rolex for £2,000 in cash.

Denzil Lush was a senior judge in the Court of Protection for 20 years and retired in 2016