Fletcher v Keatley [2017] EWCA Civ 1540

[2017] EWCA Civ 1540Case No B3/2016/1728
IN THE COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM MANCHESTER COUNTY COURT AND FAMILY COURT
His Honour Judge Main QC
0MA12606
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/10/2017
Before
LORD JUSTICE McCOMBELORD JUSTICE HAMBLENLORD JUSTICE HICKINBOTTOM
Between
CARL FLETCHERAppellantANTHONY KEATLEYRespondent
Simon Edwards (instructed by Ellisons) for AppellantDarrel Crilley (instructed by Slater and Gordon) for RespondentHearing Hearing date: 13 July 2017
Judgment ApprovedLord Justice McCombe:
[1]This is an appeal from the order of HHJ Main QC, sitting in the County Court at Manchester, made on 13 April 2016, whereby the judge entered judgment in favour of the respondent, Anthony Keatley (now aged 27), in respect of his claim for damages for personal injury suffered by him in a motor accident on 6 April 2007 (when aged 17) while travelling in a motor car driven by the appellant, Carl Fletcher. The judgment entered was for £62,837.44 and interest of £2,409.50, i.e. a total of £65,246.94. The judge ordered the appellant to pay 80% of the respondent’s costs and ordered the respondent to pay 20% of the appellant’s costs. Permission to appeal (refused by the judge) was granted by Jackson LJ by order of 18 October 2016.[2]The proceedings were begun by claim form issued on 15 September 2010. Liability was admitted in the defence served on 18 January 2011. The respondent was put to proof of his loss. The schedule of loss, settled by counsel and served in July 2014, put the losses at in excess of £2 million, based upon the premise of a significant brain injury having been suffered by the respondent. The appellant’s case was that the symptoms claimed by the respondent were the result of significant exaggeration, both by the respondent and by his family, and that none of the respondent’s reported behaviour after about December 2008 could be attributed to the accident.

(B) Background Facts

[3]The respondent was the front seat passenger in a Ford Fiesta motor car being driven by the appellant along Gregory Lane (A 5147), to the north of the village of Halsall in Lancashire, when the car left the road and struck a wooden electricity pole. The vehicle suffered extensive impact damage to its nearside and the respondent was injured. The judge found that he suffered a loss or alteration of consciousness for a period of 20 to 30 minutes, prior to his admission to the accident unit at the hospital in Southport. The accident was reported to the police at 21.30 hours on that day. The appellant called the respondent’s parents, who arrived at the scene, from their home at Ainsdale (a Southport suburb) some 4 ½ miles away, before the emergency services could attend. The respondent arrived at the hospital at 21.59.[4]It was common ground among the neurological experts engaged by the parties that the respondent had in fact suffered only a mild head injury. It had been recorded that upon arrival at the hospital he was noted to be fully alert with a Glasgow Coma Scale of 15/15. The casualty officer had noted (at 01.20 hours on 7 April) that the respondent had told him that he had crawled from the vehicle and had then lost consciousness. At that time the recorded GCS was again 15/15; the respondent was reporting post-traumatic amnesia for about an hour and complained of headache and right-sided neck pain. His right hand was cut and he had an injury to the right leg. The left side of his face was noted to be bruised. He was given paracetamol and it was arranged that he would remain in hospital overnight for observation. Headache and neck pain were reported as continuing, but there was no photophobia or vomiting. The respondent was found to be fit for discharge at 08.30 hours that morning. On the same day he took a pre-arranged holiday flight to the Canary Islands. It was said by those who went with him that he appeared very groggy in flight and that he had vomited a good deal. On the holiday, he was said to have been withdrawn, drowsy and with glazed eyes.[5]The judge examined extensively the respondent’s educational history. It was clear from the records that the respondent had had what can only be described as a dismal academic performance, both at school at Formby and then at a course for a first diploma in engineering, at Southport College, which he had begun in September 2006. As the judge recorded, the college course had an inauspicious start, acceptance on the course having been based upon a false claim by the respondent’s mother that he had secured 4 GCSE passes at Grade C in English, Science, Maths and IT. In fact, he had not attended his school in the academic year 2005/6 and had been “home educated”. His actual results were a Grade E in English and Grade F in Maths.[6]In the background there were also distressing family and personal circumstances in the period prior to his withdrawal from school before the school year 2005/6. Both his maternal grandparents died. The grandfather’s death resulted from an incident at Ainsdale railway station in May 2004 which led to the respondent’s uncle being convicted of murder. In August 2005, the respondent had also been involved in a violent incident with some older youths leading to police involvement. These events appear to have triggered the parents’ decision to embark upon home education for the respondent.

(C) Early Medical History – post-accident

[7]The respondent’s medical history from the accident up to the involvement of experts engaged for the purpose of the proceedings is set out extensively in paragraphs 25 to 36 of the judge’s judgment which needs only to be briefly summarised here.[8]There were two brief notes of relevant GP consultations relating to headaches in July 2007 and October 2008. On the latter occasion reference was made to the accident. The respondent was referred to a neurologist. He was noted to be very uncommunicative and forgetful, having poor concentration and said to be suffering from frequent headaches. An MRI scan was arranged. When that was done, in November 2008, no definite abnormality of the brain was shown. He was further referred to a neuropsychiatrist who saw him in February 2009: he was reported by that doctor as being difficult to engage in conversation and behaving inappropriately, failing to appreciate the gravity of what was being investigated.[9]The recommendation was for the respondent to see a clinical neuropsychologist for a full assessment. Following a history given to the psychologist by the respondent’s parents, including a false statement that he had achieved grade As and Bs at GCSE, the respondent was reported as appearing bored and failing to concentrate. Queries were raised as to “attentional issues, lack of motivation, visual problems” or a mixture of all of these. The psychologist reported to the referring psychiatrist that the respondent’s condition seemed to have deteriorated since the head injury and it was said that memory, attention and higher executive abilities were markedly impaired. Reference to a Brian Injury Rehabilitation Team was advised. For this purpose, the respondent went to a Brain Injury rehabilitation unit at Mossley Hospital where he was admitted on 25 September 2009. He was described in the referral letter as having had a “severe head injury”. The judge stated that the clinical consensus then was that the respondent had an acquired brain injury with an organic personality disorder secondary to an orbital frontal contusion with cognitive impairment. As the judge noted, this was surprising in view of the result of the earlier MRI scan.[10]Whilst an inpatient on the unit there were no signs of mental illness. He appeared to lack insight into his problems except indicating that he was there to “sort out his brain injury”. His parents’ reports to the unit of irritation and verbal aggression were not reflected by similar behaviour while he was a patient there, but there appeared to the clinicians to be ongoing memory problems. The discharge report was to the effect that the respondent might have an organic personality disorder, based upon the psychiatrists’ understanding at the time that the accident had given rise to a “serious” brain injury.

(D) Experts

[11]From August 2010, experts became engaged. Again the history of the experts’ involvement appears fully in the judge’s judgment at paragraphs 37 to 51 and I will only summarise that history here.[12]Professor Young, a consultant neurologist, saw the respondent on 9 August 2010 and in her report of 17 August stated her view that the respondent’s head injury was “mild”. She also was of the opinion that he was likely to be a protected party within the meaning of the Mental Health Act.[13]Dr Wolfgang Schady was the neurologist consulted on behalf of the appellant. He saw the respondent in April 2011 and also considered that the head injury was “mild”. While the respondent’s presenting condition had deteriorated since October 2007, he was unpersuaded that there was a true organic cause for this and he believed that the respondent was exaggerating his disability.[14]Dr Richard Warburg, neuropsychologist, assessed the respondent in December 2010 and reported that he appeared to be trying actively to sabotage the tests that the doctor set for him. In Dr Warburg’s view, the respondent’s conduct was not due to head injury or cognitive damage; rather there was a “volitional” element. However, he concluded that the respondent was significantly alienated from the medico-legal process and did not think that he had capacity to conduct litigation or to manage funds. He remained unclear whether there was true “organicity” (sic) to the respondent’s presentation. He suggested further brain injury rehabilitation.[15]Dr Bruce Scheepers was the neuropsychiatrist expert consulted on behalf of the respondent. He first saw the respondent in September 2010 when the respondent was wholly uncooperative with the result that the assessment had to be abandoned. He wanted the respondent to be assessed away from the family environment.[16]These various reports led to the respondent attending the Transitional Rehabilitation Unit at Billinge, near Wigan. He was there from 26 January to 23 February 2012. In this period, while away from his family, it appears that the respondent was far more cooperative than he had been on earlier assessments. He was reported as having shown considerably more ability and engagement with activities there than at home or in formal assessment previously. He was seen to have used compensatory systems for his difficulties such as memory, planning and management. The report noted, however, that in the presence of family the respondent would be more passive and helpless. It was thought there was a strong possibility of “learned helplessness, overprotection and secondary gain in the home environment. There was no evidence of problems with aggression or temper control”.[17]In July 2012, the respondent was seen by both neuropsychiatry experts, Dr Scheepers and Professor Michael Trimble (engaged by the appellant). Their conclusions at that stage are best summarised in some short passages from the judge’s judgment.[18]As for Professor Trimble,

the judge said:

“41. On 10th July 2012, the claimant was examined by Professor Trimble, professor of behavioural neurology. Both mother and father attended with the claimant. He considered the other expert reports submitted as well as the GP and Hospital notes. He noted that while the claimant presented in a monosyllabic, abnormal giggling/smirking manner, he displayed no abnormal mood or obsessional disorder. He too was concerned as to the extent of the claimant’s intellectual dysfunction, especially his memory loss which was simply not compatible with a mild head injury. He was not able to detect any recognisable psychiatric disorder which could be interlinked to the accident. He was concerned that the approach of the family was re-enforcing the perception of a severe brain injury and he was developing abnormal illness behaviour accordingly (A288).”

The judge summarised Dr Scheepers conclusions as follows:

“43. Dr Scheepers was not able to really disagree with the neurology opinions expressed on the severity of the underlying head injury (para 6.2.1) and he also agreed the symptoms in the months thereafter were entirely consistent with a not uncommon diagnosis of post concussional syndrome (PCS) (para 6.2.6). There then appeared to have been quite a dramatic deterioration some 6 months after the accident, which he felt was atypical for an organic brain injury (para 6.2.9). …He observed that the claimant’s neuropsychological testing was unusual – viz. he performed well on some tests where he would have been expected with significant cognitive and executive deficits to have performed badly and some memory tests are extremely poor. 44. The best Dr Scheepers could do by way of identifying a recognised psychiatric disorder was to play on PCS in its more ’chronic’ form, with what he described as a more bizarre symptom presentation. He then sought to link the psychiatric diagnosis (PCS) in its ‘chronic’ form with a developing ‘somatiform’ disorder – i.e. the fear of a real brain injury had replicated illness behaviour of ‘learned helplessness and dependency’. He was unclear whether there was any conscious component (so as to be seen as a ‘factitious’ disorder) – the making of a firm diagnosis was “very challenging”
. Dr Scheepers recognised that all of the above was based on involuntary factors – he was not therefore able to explain such inconsistent psychometric tests (i.e. whatever psychological difficulty the claimant laboured under – it would not have changed – so there would be an expected consistency in his tests to reflect it and there was not). However, there was a vicious cycle as his ‘learned helplessness’ was being re-enforced by his family – such close family support being entirely inappropriate (para 6.3.8).”[20]Finally, there was Dr Steven Kemp, the neuropsychologist consulted on behalf of the appellant. He assessed the respondent a year later on 4 July 2013. He reached the clear conclusion that the respondent was exaggerating his symptoms. He considered earlier psychometric examinations (including those at TRU) had reached suspect, invalid and unreliable conclusions. The respondent had suffered a mild concussive head injury and was now exaggerating. However, as summarised by the judge, Dr Kemp continued by opening a “second diagnostic box”. The judge summarised it thus: “49. … Initially, he stated there was probably a genuine psychological injury (with both he and his family members genuinely believing (reinforced in their beliefs by what was said by health clinicians) he had suffered an organic brain injury requiring care). The claimant then developed abnormal illness beliefs, reinforced by the actions of his family, in treating him as brain damaged, which have led to abnormal illness behaviour. Dr Kemp uses the label ‘somatic symptom disorder’ under DSM V, which interacts alongside his exaggeration. Dr Kemp is then ambivalent as to precise cause and effect, being uncertain as to the claimant’s ‘forensic’ past. Nevertheless, with 10-15 sessions from an experienced neuropsychologist – if the family engaged with the treatment, the claimant would recover. There was no basis for any care or for the role of a case manager – which would only go to reinforce his abnormal beliefs.” (Underlining as in the judgment)[21]The experts produced joint statements on areas of agreement and disagreement in the usual way.[22]The neurologists were agreed that the respondent had suffered mild head injury which was not likely to have resulted in any brain injury. They considered that the presentation of a significant worsening of his function was not in keeping with organic injury. It was agreed that the injury led to a PCS lasting 12 to 18 months, i.e. to September 2008. Neurological effects would not have lasted beyond that time. They deferred to the other experts in any issue of continuing psychological state.[23]The important evidence now affecting the issues on this appeal was given by the neuropsychiatrists (Trimble/Scheepers) and the neuropsychologists (Kemp/Warburg). Their joint reports were summarised by the judge as follows: “51. … Dr Scheepers and Professor Trimble disagreed on the best explanation for alleged symptoms going beyond the 18 months period. Dr Scheepers remained with his opinion that the only explanation was a ‘somatiform’ disorder – unconscious and non-deliberate – he explained why he continued to hold this opinion. Professor Trimble did not agree the claimant’s clinical presentation fitted that diagnosis but he did not descend into any detail to explain why Dr Scheepers’s attribution of the underlying cause of the claimant’s presentation was not ‘somatiform’ in nature – by implication, if not ‘somatiform’, then further management should be limited to psychological treatment. Dr Scheepers still thought he would recover by 12 months following his sessions – as Professor Trimble was not able to make a diagnosis; he offered no opinion of speed of recovery with specialist psychological input (A429/430). 52. The neuropsychologists joint statement is undated. They do not agree on the claimant’s psychological presentation. Dr Kemp’s view remained unaltered – his suboptimal recovery is due to his personality with family and care staff treating him as if brain damaged re-inforcing his dependency – the family should engage some experienced neuropsychological assistance to adjust these underlying beliefs and stop his support which just reinforces his dependency. Dr Warburg looked to the TRU experiences as indicative of the claimant being capable of much greater independence than he shows (is allowed to demonstrate) – his underlying pre-morbid behaviour was anti-social and he and his family had misinterpreted the initial mild cognitive changes - the claimant’s behaviour has become exaggerated and these psychological factors continued to operate.

(E) DVD surveillance

[24]The judge was also presented with covert surveillance recordings of the respondent from August 2013 to May 2015. The most significant were two in number: 1) a recording of the respondent on 20 February 2015 in a public house in Birkdale, Southport; and 2) a recording of him working in a five man removals team in May 2015.[25]Suffice it to say that in each of these recordings, it seems that the respondent was observed to be behaving in a quite normal fashion. In the pub, he could be seen with friends, buying drinks at the bar and speaking to bar staff. He was seen in conversation with his friends and then being distracted by his mobile telephone. At work he was filmed engaging in normal work activity loading and unloading a removal van, conversing with workmates and going to shops to buy refreshments during breaks.

(F) The Trial

[26]By the time of the trial (8 – 12 February 2016) the respondent’s litigation friend, his father (whose name is also Anthony Keatley) had parted company with his solicitors and he appeared before the judge in person, assisted by a “McKenzie Friend”, to present the respondent’s case. The judge in his judgment said: “It has not been easy”; I can well understand that remark.[27]The respondent had failed to procure the updating of medical evidence on his side following disclosure of the DVD recordings and the consequent directions that such updating evidence should be obtained, given by HHJ Gore QC in May 2015. Moreover, nothing had been done to procure the attendance at the trial of the respondent’s medical experts. Dr Scheepers, therefore, did not give evidence. The judge did hear from Professor Trimble and from Dr Kemp.[28]The respondent did not give evidence before the judge. However, evidence was given by his parents, his elder sister and from a number of family friends. The judge detected an element of partiality on the part of many of these witnesses. There was one exception to this among the family friends and another exception in the case of the respondent’s employer, Mr David Halsall. The judge summarised this evidence and the DVD footage as follows:
“62. Nevertheless, save Mr Halsall, they all spoke with one voice on the issue of the claimant seemingly, having changed personality and in his behaviour since the date of the accident – whether by his wish in remaining in an adolescent time-warp – by his selection of peer group younger than himself and being attracted to youths (male and female) in their later teenage years, as opposed to someone more of his own age (mid-20s) – or in his inability to organise or motivate himself or engage in age appropriate interpersonal relationships – his incompetence in taking on his peer group in more adult conversations but instead feeding off his mobile phone by way of distraction, constantly yawning, unable to hold eye contact, constantly looking around for signals of reassurance but being unable to fully participate in an adult conversation. 63. In part, the DVD surveillance provides an insight as to the reliability of some of these assertions but they do and cannot provide a complete answer – they do not show him out at night, abusing alcohol with his teenage friends, getting into awkward situations, losing his wallet, inappropriately spending all his money with nothing left to get home.”
[29]The judgment summarises evidence, which the judge clearly accepted, relating to the respondent’s struggle to look after money carefully and properly. The judge recognised the difference between lack of caution of the part of the young and cases where poor choices arise out of disturbance of the mind, but for which the poor choices would not have occurred. In the latter case, court intervention was necessary.

(G) The Judge’s findings and conclusions

[30]In paragraph 81 of the judgment, the judge sets out his principal findings. These are to my mind carefully weighed and cogently justified. In saying so, I will return, of course, to consider the attack made upon some of those findings by Mr Edwards for the appellant.[31]The judge found that the respondent’s head injury was mild and that it did not give rise to organic brain injury. This was consistent with the unequivocal neurological evidence which the judge accepted.[32]The judge found that the respondent did, however, continue to suffer the effects of PCS until the end of 2009. From then, until he began work in late 2014, he suffered “somatiform disorder”. The judge drew this conclusion from the evidence of Dr Scheepers and Dr Kemp. The important passages of the judgment in this respect are as follows.[33]First, (at paragraph 81 g.) the judge said, “I find it is probable the claimant did thereafter experience chronicity of his PCS, which as Dr Scheepers has suggested with some support form Dr Kemp, reflected a changing from ‘organic’ to ‘functional’ with the development of somatiform behaviour, over which the claimant had little self-control.” The judge acknowledged Dr Kemp’s opinion that test scores did not reflect just a functional response in a disturbed individual but also strongly reflected a deliberate behaviour (paragraph 81 h.). The judge continued at paragraph 81 i, thus:
“I therefore find, (a) the claimant’s behaviour from the accident to later 2008 was ‘organic’ (PCS) – thereafter, (2) into 2009 his behaviour was in essence ‘functional’ albeit appearing as a ‘chronic’ PCS, which was likely genuine and reflected his difficulty in adjusting to the same with both he and his family being told he had suffered a brain injury. However, by May 2009, his test scores at the Walton Centre suggested, there was an overlay of deliberate behaviour. I find this then developed, once the unequivocal evidence rejecting any likely brain damage was presented – Professor Young reporting in Autumn 2010. Accordingly, the claimant’s abject failure to participate or even try, in Dr Warburg’s tests in December 2010, reflected substantially deliberate as opposed to functional behaviour but the functional difficulties were still I find, an operating contributory cause.” (Underlining as in the judgment) The judge found that by July 2012, the respondent was a psychologically affected young man, needing less cosseting by the family and psychological therapy “to address his belief structures”
. In paragraph 81 m.,

the judge said this:

“Had the claimant’s family acted reasonably in getting the claimant the neuropsychological support recommended for him by Dr Scheepers (the claimant needing 20 sessions of CBT with a 70% chance of full recovery in 12 months) in late 2012, I find on a balance of probability by the end of 2013, he would have been recovered. That time point represents the end of any potential claim in terms of causation of loss.”
In paragraph 81 n.,

the judge added:

“As it is, the claimant’s ongoing and underlying somatiform disorder has interfered with his pre-morbid ability to look after his finances and control his spending behaviour (in the way described by Mr Ayres) and for a period, I am satisfied that the accident has caused him to have disturbed functioning of his mind, which has rendered him in need of protection due to a real vulnerability to those who would take advantage of him. I am also satisfied for a period, for the same reason, he has lacked capacity to conduct his own litigation. …”
[34]As already mentioned, the judge’s total award of damages was £65,246.94. Of this award, Mr Edwards, for the appellant, submitted that the judge should only have awarded, as he did, the £5,000 for pain, suffering and loss of amenity in the first 18 months after the accident. He submitted that the rest of the award should be overturned as all the heads of damage concerned arose, not from the accident, but out of the respondent’s own deliberate exaggeration of his symptoms.

(H) The Appeal and my conclusions

[35]Mr Edwards accepted that to succeed on the appeal against the judge’s findings as to the extent of the true injury suffered by the respondent and the losses arising from it, this was a case in which he would have to persuade us that those findings were plainly wrong: see Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 53 and Henderson v Foxworth [2014] UKSC 41.[36]He placed his grounds of appeal in groups, beginning with a challenge to the judge’s finding that the respondent continued to suffer true injury/psychological symptoms from the accident in the period after the end of 2008. He submitted that the judge had been wrong to accept the opinion of Dr Scheepers and that he should have preferred the opinion of Professor Trimble. Moreover, Mr Edwards argued, the judge did not give adequate reasons for his decision in this respect: he referred us in this respect to Flannery & Anor. v Halifax Estate Agencies Ltd. [2000] 1 WLR 377.[37]Mr Edwards pointed out that the judge had not heard any oral evidence from the respondent himself or from Dr Scheepers. The doctor had last considered the case in October 2013 and he had not seen the DVD evidence which, it was submitted, strongly supported the appellant’s case and the opinion of Professor Trimble that rejected any continuing psychiatric component to the respondent’s post-2008 symptoms. In contrast, argued Mr Edwards, Professor Trimble had continued to be involved throughout; he had seen the later evidence and had given support for his opinion in oral evidence at the trial.[38]In my judgment, while the medical evidence in the case (documentary and oral) is bulky, the point here is a relatively short one.[39]The judge had the evidence of Dr Scheepers, in his report of October 2013, to the effect that it was not unusual for additional or bizarre symptoms to emerge in patients who had had chronic post-concussional syndrome; the cause was likely to be “psychologically mediated”; the range of symptoms, however, was unusual in the present case. The condition he sought to describe represented, he had said, a somatoform disorder and, in the respondent’s case, there were both deliberate and involuntary aspects to the respondent’s presentation and illness behaviour.[40]Both neuropsychiatrists were asked, for the purposes of their joint report to the court in October 2013, whether the respondent’s continuing symptoms could be attributed to the accident. Dr Scheepers answered that if the accident had not happened it was unlikely that he would be presenting then with these symptoms. The respondent, in his view, was presenting with “illness behaviour, the underlying mechanism of which [was] non-deliberate and unconscious. Nonetheless…there [was] also an element of conscious exaggeration…”. Professor Trimble said that he was unable to answer the question; he was unable to formulate a psychiatric diagnosis which fitted the continuing symptoms leading to any possibility of attributing a causation. He was “unconvinced that there [was] any clear formulation to explain his symptomatology,… the presentation [did] not represent any psychiatric illness either in known diagnostic categorical schemes such as the DSMIV, or described in clinical textbooks”.[41]Professor Trimble found his view confirmed by the DVD surveillance material. Dr Kemp did not comment specifically upon the DVDs; he had seen them, but held to his same view at trial.[42]As Mr Crilley for the respondent pointed out, the judge’s finding of support for Dr Scheepers’s view in the evidence of Dr Kemp was amply made out in the reports and in the oral evidence that Dr Kemp gave. The judge had the opportunity to hear Dr Kemp’s oral evidence. Dr Kemp was the appellant’s witness.[43]Mr Crilley submitted that these two experts had alighted upon strikingly similar views. Both had decided that somatic symptom disorder was the likely reason for the respondent’s presentation. Both believed there were some genuine symptoms in this case, overlaid with exaggeration, and that it was difficult to dissociate one element from the other. Dr Kemp had said that it was not incongruous for a patient to be exaggerating and still have certain genuine psychological symptoms. Both experts identified inconsistent features in the presentation. Both seemed to agree that from 2013 there were more deliberate elements than genuine ones. Dr Kemp had maintained his view (which remained close to that of Dr Scheepers) in his oral evidence at trial. Mr Crilley took us to a number of extracts from the written reports and from Dr Kemp’s oral evidence which, in my judgment, bore out these submissions. It is not necessary to identify them individually.[44]Mr Crilley also pointed out that the conclusion reached by Dr Kemp was a about a psychological condition. Neuropsychology was the discipline in which Dr Kemp was an expert and, within that discipline, he has a special clinical and research interest in traumatic brain injury, test effort and malingering and in the psychological treatment of medically unexplained symptoms. These were precisely the areas of dysfunction that required analysis here.[45]It seems further that Professor Trimble in his various reports, while being unable to identify any psychiatric injury, did not provide any cogent material to counter the opinions on a likely psychological condition that had been identified by Drs. Scheepers and Kemp.[46]For my part, I consider that this material amply justified the judge’s findings in the passages of his judgment which I have extracted above. The judge analysed the evidence fully and had the benefit of seeing both Dr Kemp and Professor Trimble and hearing what they each said about the rival diagnoses in this difficult case. In my judgment, the judge’s conclusion cannot be faulted; it was one which he was entitled to reach on the evidence.[47]Further, I do not find that the judge’s analysis is defective for want of sufficient reasoning, as Mr Edwards submitted. The judge’s conclusions were supported by the overall background which he recited in his comprehensive judgment. He set out fully and clearly the rival views of the experts and his finding that the evidence of Dr Scheepers and Dr Kemp pointed to the probable explanation of the respondent’s condition. The underlying opinions of those experts were well known to the parties, as was the rival view of Professor Trimble. The inconclusive views of the latter were recorded by the judge in paragraphs 46, 51 and 55 of the judgment. I accept Mr Crilley’s submission that the appellant’s case before us tended on this issue to be “myopic”, focusing on the evidence of the two neuropsychiatrists without factoring in the evidence of the neuropsychologist, Dr Kemp, whose view supported the opinion of Dr Scheepers rather than that of Professor Trimble.[48]The balance of the evidence of two experts, one supporting the other, favoured the respondent, and it was not necessary for the judge to go over the ground again. The parties could see quite clearly from the judgment overall that the judge preferred the opinions of the two experts that he identified to that of the third and his reason for so doing was obvious, when taken in the context of the judgment as a whole.[49]I would reject, therefore, the arguments of Mr Edwards on this part of the case (grounds 1, 2 and 3 of the Grounds of Appeal), ably presented as they were.[50]In the next group of grounds (Grounds 4, 5 and 6), Mr Edwards argued that the judge should have struck out the respondent’s claims to damages in the later periods, sustained as they were by deliberate exaggeration by the respondent and lying evidence from the family, amounting to an abuse of the court’s process.[51]We were referred to Summers v Fairclough Homes Ltd. [2012] UKSC 26, per Lord Clarke of Stone-cum-Ebony (giving the judgment of the Supreme Court) at [49]-[52]. In those passages, Lord Clarke recognised the power to strike out claims, for such reasons, at any stage of the proceedings even at the end of a trial. Lord Clarke said; “49. … The draconian step of striking a claim out is always a last resort, a fortioriwhere to do so would deprive the claimant of a substantive right to which the court had held that he was entitled after a fair trial. It is very difficult indeed to think of circumstances in which such a conclusion would be proportionate. Such circumstances might, however, include a case where there had been a massive attempt to deceive the court but the award of damages would be very small. 50. It was submitted on behalf of the defendant that it is necessary to use the power to strike out the claim in circumstances of this kind in order to deter fraudulent claims of the type made by the claimant in the instant case because they are all too prevalent. We accept that all reasonable steps should be taken to deter them. However, there is a balance to be struck. To date the balance has been struck by assessing both liability and quantum and, provided that those assessments can be carried out fairly, to give judgment in the ordinary way. The reasons for that approach are explained by the Court of Appeal in both Masood v Zahoor [2010] 1 WLR 746and Ul-Haq v Shah [2010] 1 WLR 616. 51. We accept that such an approach will be correct in the vast majority of cases. Moreover, we do not accept the submission that, unless such claims are struck out, dishonest claimants will not be deterred. There are many ways in which deterrence can be achieved. They include ensuring that the dishonesty does not increase the award of damages, making orders for costs, reducing interest, proceedings for contempt and criminal proceedings.”[52]We were also referred to, what Mr Edwards submitted was an analogous case, Kelly v Churchill [2007] RTR 26 (Gibbs J) which seemed to me to be more an example of the exercise of the court of the various powers, rather than containing any statement of principle.[53]The judge in the present case considered what course to take in the face of the unsatisfactory features in the presentation of the respondent’s case that he had found. He said this:
“83. I accept whilst the effects of the organic PCS lasted, moving into its ‘chronic’ phase with the development of the claimant’s ‘functional’ disorder taking over to May 2009 and thereafter, the underlying somatiform disorder to a cut off in say December 2013, will sound in general damages, I do not take the view that the deliberate component of the claimant’s behaviour which I have identified above, leads me to conclude that such has been his ‘abuse of process’ that his claim should stand struck out. Taking my lead from the Supreme Court in the case of Summers –v- Fairclough Homes Ltd and the speech of Lord Clarke of Stone-cum-Ebony, I judge that as he was genuinely injured in the accident and has been affected by a significant and genuine organic and then psychiatric presentation, which has interfered with his day to day experiences, causatively until the end of 2013, he should be permitted to recover some damages. That said, it is necessary for me to cut away any alleged loss that flows from his deliberate behaviour and which properly reflects the expert advice and evidence which I find the claimant through his litigation friend and family, should have taken heed of.”
[54]In my judgment, that was an entirely proper conclusion for the judge to reach. He had a discretion to exercise and it cannot be said that he exercised it contrary to any principle. It seems to me that he considered the matter precisely in line with Lord Clarke’s statement in Summers and that his decision cannot be faulted. It is to be noted that the judge’s costs order also appears to have reflected part of his sanction for the manner in which the respondent’s case had been advanced.[55]Next within this group of grounds, the appellant argued that the judge erred in his conclusions in seeking to untangle the genuine from the non-genuine aspects of the respondent’s claim. Mr Edwards submitted that once the judge found that there was conscious exaggeration by the respondent from May 2009, the evidence did not sufficiently establish any distinct features of the respondent’s symptoms that were attributable to such part of the his presenting condition as was genuine. The burden of proof was on the respondent and he had failed to discharge it. Mr Edwards referred us to a number of passages in the evidence of the experts in which they had said that they were unable to identify precisely which parts of the presentation were “good” and which were “bad”.[56]In the end, the judge awarded 50% of what he would have awarded for pain, suffering and loss of amenity in the period from the end of 2008 to the end of 2013, the deduction being made for the respondent’s “own deliberate behaviour” (paragraph 85).[57]I can find no fault in this assessment. This respondent had proved to the judge’s satisfaction some genuine adverse consequences of this accident in the period 2009 to 2013. It seemed probable that the element of exaggeration increased towards the end of the period, but quite reasonably, the experts could not fix the extent of the contribution to the respondent’s presentation made by his deliberate exaggeration at any particular time. In my judgment, in such circumstances, the judge reached a sensible pragmatic solution, within the guidance given by Lord Clarke in Summers, and I would not disturb such a finding by a trial judge who had heard the evidence.[58]In a rather similar vein, Mr Edwards attacked the judge’s assessment of damages for past loss of earnings.[59]The judge assessed the evidence that had been presented to him as to the respondent’s likely working role, had the accident not intervened. He found that the unskilled work that the respondent had been doing in more recent times (for a removals business) probably represented his likely differential earning capacity, given his age and lack of any qualifications. The judge held that he was entitled to damages for loss of earnings to the end of 2013, subject to “(1) a vicissitudes of working life discount and (2) deduction for the deliberate behaviour component”. Applying those factors, the judge concluded as follows (paragraph 99):
“99. There is no evidence he was in gainful employment to the end of 2013 to require any credit for past earnings. I would deduct a 12½% figure to reflect the fact that he might not over the whole period have remained in work over the whole period. I will also deduct 40% to reflect his deliberate behaviour. There is no evidence this was manifesting itself until his tests in May 2009 (this has resulted in my not deducting more under this head). The resulting figure is 5.5 years x £13,155 x 52½% = £34,367.44. There will be interest on this sum at half the court special account rate from June 2008 to date (4.17%) at £1,433.”
[60]Again, it seems to me that the judge made a fair and justifiable assessment of this head of damage. The deduction of 12 ½ % for the reality that the respondent might not have been in work for the full period, favouring the appellant, is not challenged. It was clearly a rough and ready assessment which cannot sensibly be impugned. Equally, I see no force in the criticism of the deduction of 40% for deliberate behaviour simply on the basis that it should have been 50% as with general damages. For my part, I consider that the judge’s reason for not deducting more than 40% under this head, which he gives in paragraph 99 of the judgment, quite properly justifies his figure in this respect.[61]Two further aspects of the judge’s award were challenged by Mr Edwards: first, the cost of the respondent’s assessment at the TRU (£12,470), and secondly, the cost of proposed future treatment (£7,000). Mr Edwards submitted that each of these awards were wrongly made on the basis that neither would have been required but for the exaggerated element of the respondent’s presentation. Put more plainly, Mr Edwards said that, if the respondent had not been lying, neither of these elements of treatment and rehabilitation would have been necessary.[62]In my judgment, as Mr Crilley argued, these two heads of damage were properly awarded. The TRU admission was a proper step which enabled the experts properly to understand the mixed causes of the respondent’s presentation. It had been a step in the analysis of the respondent’s condition which none of the experts had criticised and indeed it was analysis that most of them had drawn upon in presenting their various opinions. As for future therapy, this had been firmly recommended by Dr Kemp and was still considered by him to be needed at the time of trial, even if it should have been undertaken earlier and should not have been rejected by the respondent when first recommended. It does not appear that Dr Kemp suggested that the respondent was at fault, in effect for failing to mitigate his genuine injury by getting the treatment earlier. Dr Kemp was making the same recommendation in his reports in May and October 2015.[63]The remaining grounds of appeal (grounds 8 to 11) went to the issue of the respondent’s capacity to litigate. It was pointed out that the judge found that the respondent had lacked capacity to conduct his own litigation “for a period”, but he had not identified which period. It was said (in the skeleton argument, paragraph 70) that there was no basis, therefore, for the judge to have held that the respondent lacked such capacity after his deliberate behaviour started to manifest itself in about May 2009. Thus, in view of the respondent’s lack of participation in the proceedings, it necessarily followed that the proceedings had been brought without his authority and should be struck out.[64]In presenting the appeal, however, Mr Edwards modified his position and accepted that once a litigation friend has been appointed, when the protected party regains or acquires capacity, the litigation friend’s appointment continues until it is ended by court[65]Mr Crilley took us to the only opinion on mental capacity that was available at the time of the issue of proceedings. This was from Professor Young (dated 13 August 2010). In that report, as already noted above (paragraph 13) the Professor said that, in her opinion, the respondent was likely to be a protected party within the meaning of the Mental Health Act. A similar view was expressed by Dr Warburg in his report of 3 January 2011. It seems to me that, in the light of those two opinions spanning the date of issue of proceedings, it must be properly inferred on the evidence that the respondent did not have capacity on the date of issue of the proceedings. Accordingly, these grounds of appeal must also fail.

(I) Conclusion

[66]For these reasons, I would dismiss this appeal.

Lord Justice Hamblen:

[67]I agree.

Lord Justice Hickinbottom:

[68]I also agree.

order

CPR 29.9(2). Accordingly, he submitted very fairly, if the court inferred that the period in which the respondent lacked capacity encompassed the date of the issue of the proceedings through the litigation friend (on 15 September 2010), then the proceedings would have been brought with proper authority and these grounds of appeal would fall away.