Bradbury & Ors v Paterson & Ors [2014] EWHC 3992 (QB)

[2014] EWHC 3992 (QB)Case No IHQ/14/0704/0705Case No IHQ/14/0710-0718Case No IHQ/14/0722
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/11/2014
Before
MR JUSTICE FOSKETT
Between
LOUISE BRADBURYClaimantsMAUREEN DALTONClaimantEMMA MEASEYClaimantJULIE NICHOLSONClaimantJENNIFER O’DONNELLClaimant(1) IAN PATERSON (formerly by the OFFICIAL SOLICITOR as his litigation friend, but now without assistance)Defendants(2) SPIRE HEALTHCARE LIMITEDDefendant(3) HEART OF ENGLAND NHS TRUSTDefendant
Lizanne Gumbel QC and Robert Kellar (instructed by Slater & Gordon (UK) LLP) for ClaimantsCatherine Ewins (instructed by DAC Beachcroft LLP, Newcastle upon Tyne) for 2 nd DefendantMichael de Navarro QC and William Wraight (instructed by DAC Beachcroft LLP, Bristol) for 3 rd DefendantFenella Morris QC and Alexander Ruck Keene (instructed by the Official Solicitor) for Official SolicitorHearing Hearing date: 17 November 2014
Judgment

Introduction

[1]The application before me raises a novel point about what the Court should do when the Official Solicitor concludes that he can no longer continue to act as litigation friend for a protected party in litigation because the anticipated source of funding for the Official Solicitor’s costs ceases to be available.[2]The problem has arisen in this high profile and sensitive litigation in which former patients of Mr Ian Paterson are suing him and those for whom he worked for damages arising from alleged negligent surgery for breast cancer carried out by him from the 1990s onwards. The background was the subject of an independent review commissioned by the 3rd Defendant (see paragraph 5 below) by Professor Sir Ian Kennedy, whose report was published on 19 December 2013, and a further review (the ‘Verita Review’) commissioned by the 2nd Defendant (see also paragraph 5 below) which was published (or, at least, partially published) on 4 March 2014.[3]It is not necessary or indeed appropriate to go into that background in a detailed way for present purposes other than to note the identities and interests of the parties involved in this litigation and to note that, whilst there are 5 named claimants involved in the present application, they represent but a very few of the total number of claimants who have notified claims arising from Mr Paterson’s treatment of them at various times.[4]Mr Paterson is himself a defendant in the various actions launched to date and I will return to his status in the litigation in due course (see paragraphs 8-16 below). Since 29 October 2012 Mr Paterson has been suspended from practice by the General Medical Council having been suspended previously by both defendants.[5]At times material to the treatment giving rise to the various claims, Mr Paterson was employed at Solihull Hospital as an NHS Consultant (as a Consultant General, Breast and Vascular Surgeon) by the 3rd Defendant, the Heart of England NHS Foundation Trust (‘HEFT’), but most, if not all, of the alleged negligent treatment was carried out by him privately at the Parkway Hospital in Solihull or Little Aston Hospital, which at the material times were operated by BUPA, but are now operated by Spire Healthcare Limited (‘Spire’) to which any potential liabilities of BUPA have been transferred.[6]As I understand it, some of the patients upon whom Mr Paterson operated had been referred to the Parkway Hospital by him in his capacity as an employee of HEFT and that may be one link in the case advanced against HEFT. However, the pleadings I have seen make a case against Spire, and indeed against HEFT, that each should have acted on warning signs that are alleged to have existed at various material times to stop Mr Paterson continuing to operate such that some of the surgery actually carried out would in all probability not have been carried out. Spire is also alleged to be vicariously liable for his alleged negligent treatment. Spire denies that it is so liable irrespective of the merits of any claim that might be made and HEFT contends that it owed no duty of care to those Mr Paterson treated privately.[7]It appears to be accepted for present purposes that the description of the allegations against Mr Paterson in general terms (the litigation in respect of which is presently being managed by Master Roberts) is accurately described in the Skeleton Argument prepared by Miss Gumbel QC and Mr Kellar as follows:
“… Although each civil claim is of course based upon different facts there are common themes. The central allegations in many of the cases involve: a. Diagnosing patients with breast cancer who did not have cancer. b. Performing unnecessary breast surgery (wide local excisions or mastectomies) upon women (and some men) who had no clinical need for such surgery. In many cases, it is alleged that Mr. Paterson repeatedly performed unnecessary procedures on the same patient. c. Performing incomplete (“cleavage sparing”) mastectomies on patients who required full mastectomies leading, in many cases, to the recurrence of cancer and/or the need for substantial corrective surgery. d. Failing to obtain patients’ informed consent for invasive surgery.”

Mr Paterson’s status in the litigation

[8]As I have indicated, Mr Paterson is an individual defendant and faces allegations broadly along the lines summarised in paragraph 7 above.[9]Although I have had no material placed before me by the Medical Defence Union (the ‘MDU’), I understand that it is Mr Paterson’s defence organisation. It is not an insurance company, but between 2002 and 2013 its members had the benefit of a contract of insurance between the member and third party insurers for claims notified during the currency of the policy and arising from incidents which occurred during a period of membership. Apart from this facility, members were entitled under the Memorandum and Articles of Association (the MDU is a discretionary mutual organisation) to request assistance with professional indemnity claims arising from incidents in their professional practice that occurred during a period of membership, but the provision of such assistance remains at all times in the absolute discretion of the Board of Management of the MDU.[10]As I understand it, the Official Solicitor originally understood that the MDU was prepared to act for Mr Paterson in the claims brought by the 5 claimants concerned in these applications. I understand, however, that the MDU informed the Official Solicitor in August 2014 that Mr Paterson was not entitled to the benefit of the policy of insurance with third party insurers for claims notified after 30 June 2013 (which includes all the present claims) and that any assistance the MDU might otherwise give him depended on a favourable exercise of the discretion referred to above. Apparently, on 1 September 2014 its Board of Management had accepted the recommendation of a committee that the discretionary assistance with the defence costs that Mr Paterson had hitherto been receiving in respect of the five claims should be terminated. Although that decision impacts on the position of the Official Solicitor (in the circumstances I will describe below), I take it that that also means that the MDU will not indemnify Mr Paterson in respect of any damages for which he may be found liable in any of those claims.[11]Prior to the withdrawal of support for him by the MDU, Mr Paterson had been represented in these claims by Messrs Ryans, solicitors experienced in clinical negligence litigation, who had been instructed by the MDU.[12]Apparently, towards the end of 2013 Mr Paterson became increasingly unwell due to the pressures he was under and Messrs Ryans obtained a psychiatric report upon him which supported the view that he lacked the capacity to give instructions for the purposes of this litigation. I have not seen that report, nor I am told was it placed before Master Roberts, but he acted on the basis of a Certificate of Capacity completed by the psychiatric expert at the Official Solicitor’s request and he made orders in each of the actions that the Official Solicitor should be appointed to act as Mr Paterson’s litigation friend. The Official Solicitor had agreed to act in that capacity and did so until the events to which I referred in paragraph 10.[13]As a result of the withdrawal of funding by the MDU, the Official Solicitor applied to the court pursuant to CPR r.21.7 for an order that he be discharged as Mr Paterson’s litigation friend in each of the five claims and at the same time Ryans applied to come off the record pursuant to CPR r. 42.3.[14]By orders made on 13 October 2014, McGowan J granted both applications at a hearing at which neither the claimants nor the 2nd and 3rd Defendants were present or to which any written representations were addressed.[15]Four of the five individual claimants, together with the 2nd and 3rd Defendants, seek an order setting aside the order discharging the Official Solicitor as Mr Paterson’s litigation friend. One of the claimants had signed a consent order with the defendants setting aside the order, but such an order is of no practical effect.[16]In the Skeleton Argument lodged by Miss Fenella Morris QC and Mr Alexander Ruck Keene on behalf of the Official Solicitor arguments challenging the jurisdiction of the court to entertain such an application were foreshadowed. However, sensibly it has been accepted that I do have jurisdiction to set aside or vary the order and I have proceeded on the assumption that I do indeed have the power to intervene should I consider it appropriate to do so.

The effect of McGowan J’s orders

[17]It is plain from the transcript of the hearing before McGowan J that she was understandably concerned about the effect of the orders she made since they had the effect of halting the proceedings, but felt that she had no alternative but to make the orders sought.[18]The order made (which, of course, is driven by the terms of CPR 21.2 which provides that a “protected party” must have a litigation friend) was that the five claims should be stayed as between the claimants and Mr Paterson “until such time as a new litigation friend has been appointed to act for [him].”[19]Although her order related to the five specific claims, the suggestion is made by those submitting that the order should not have been made that it has had the effect of bringing the whole litigation to a stop. Attention is drawn to CPR 21.3(3) which provides as follows:
“If during proceedings a party lacks capacity to continue to conduct proceedings, no party may take any further step in the proceedings without the permission of the court until the protected party has a litigation friend.” (Emphasis added.)
[20]However, the phraseology of this provision indicates that jurisdiction exists for the court to give permission for further steps to be taken in the proceedings pending the appointment of a litigation friend. I understand that in the cases of Ms Bradbury and Ms Nicholson applications were made to Master Roberts (after the orders were made by McGowan J) that they be permitted to continue their proceedings. He made orders dated 3 November 2014 providing that their claims may continue against all Defendants pursuant to the above provision and requiring the parties to e-mail submissions to him by 24 November 2014 as to whether the proceedings should be stayed against any or all Defendants and requiring one of the parties to notify him of the order made by me.[21]I will return to the question of the stay later.

Should the orders made by McGowan J stand?

[22]Mr Michael de Navarro QC for HEFT, supported by Miss Gumbel and Mr Kellar and Miss Ewins, submits that there is a short answer to the problem and contends that McGowan J fell into error in causing or permitting Mr Paterson to be left, while still a protected party, without a litigation friend. In his Skeleton Argument he submits that this scenario “is not permitted (and possibly not even contemplated) by the CPR.”[23]He submits that the court can compel the Official Solicitor to continue to act as a litigation friend where, as in this case, he had initially consented to act in that capacity. He contends that this is the effect of CPR 21.7(1), supported tangentially by CPR 21.8(3). Mr de Navarro says that other considerations may apply in respect of the initial appointment of any litigation friend (where the consent of the proposed litigation friend must be evidenced: see PD21, paragraph 3.3), but that the position is different once the appointment has been accepted.[24]CPR 21.7(1) is in the following terms:
“The court may – (a) direct that a person may not act as a litigation friend; (b) terminate a litigation friend's appointment; or (c) appoint a new litigation friend in substitution for an existing one ….”
[25]CPR 21.8(3) is as follows:
“An application for an order under rule 21.7 must also be served on – (a) the person who is the litigation friend, or who is purporting to act as the litigation friend, when the application is made; and (b) the person who it is proposed should be the litigation friend, if he is not the applicant ….”
[26]Mr de Navarro submits that that the power of the court to terminate a litigation friend’s appointment under CPR 21.7(1)(b) is subject to the overriding requirement of CPR 21.2(1) (see paragraph 18 above) that a protected party must have a litigation friend. He submits that where a party remains a protected party, termination of a litigation friend’s appointment without more is not permitted: should a litigation friend wish or need to cease acting as such, a suitable substitute must be identified before an order terminating his appointment is made (the substitute being required to be served with the application under CPR 21.7 pursuant to CPR 21.8(3)).[27]Miss Morris counters that submission by saying that the power to order the termination of a litigation friend’s appointment is not restricted in the manner contended for by Mr de Navarro. Subject only to the requirement (in CPR 21.7(2)) that the litigation friend provides evidence in support of his application for an order terminating his appointment, she contends that there is no further requirement in CPR 21.7 requiring, for example, that he identifies a substitute. Indeed she submits that CPR 21.7(1)(b) would be otiose if there were such a requirement.[28]It does seem to me that Miss Morris’ submission on the construction of the rules is correct. She supplements that submission by contending that it is clear that any litigation friend must(a) consent at the outset to his appointment (see paragraph 23 above) and(b) continue to consent throughout the duration of that appointment. She says that, apart from anything else, a litigation friend who is unwilling to continue to act is, by definition, a person who is most unlikely to continue to satisfy the criteria set out in CPR 21.4(3) (which applies also to those appointed by court[29]Those submissions have some considerable force in the generality of things, though I would doubt that the Official Solicitor, as an officer of the court, would act contrary to the interests of a protected party in such a situation. Nonetheless, because of the funding constraints to which he is now exposed (see paragraphs 33-37 below), the position of enforced continuation as a litigation friend would undoubtedly be unwelcome and uncomfortable.[30]Both Mr de Navarro and Miss Morris sought to draw some support for their competing submissions from the wording of the former RSC, Order 80 rr.3 and 4, and from the words of Stephenson LJ in Re E (mental health patient) [1985] 1 WLR 245, at 243. However, I do not, with respect, think that looking at the former RSC (doubtless promulgated, so far as the Official Solicitor is concerned, in a very different funding context from the present context) is of assistance in construing the code set in place by the CPR. I do not think that there is any warrant for the conclusion that the consent of any person to act as a litigation friend is irrevocable, certainly under the regime provided for by the CPR.[31]Miss Morris was anxious to emphasise that she was not suggesting on the Official Solicitor’s behalf that a court can or should automatically grant an application under CPR 21.7(1)(b): it should only do so when the evidence justifies the grant of the application and there may be circumstances in which it would be inappropriate to grant it. I agree that the court’s discretion is a full one, though in reality there may be little room to manoeuvre when presented with such an application.[32]I will return to the issue of whether McGowan J’s orders should stand when I have addressed the Official Solicitor’s funding constraints.

The Official Solicitor’s funding constraints generally and in this case

[33]Although speaking in the context of a family case, the words of Sir James Munby P in the very recent case of In the Matter of D (A Child) [2014] EWFC 39 are pertinent to the Official Solicitor’s present position. He said this at [20]:
“… The father has a learning disability. He is a "protected party" within the meaning of Rule 2.3 of the Family Procedure Rules 2010. As a matter of law he is not able, as a protected party, to act without a litigation friend. Quite apart from that, the father's learning disability in any event requires him to have considerable support and assistance to be able to participate effectively in the proceedings. The Official Solicitor has agreed to act as his litigation friend. The Official Solicitor cannot be compelled to act as anyone's litigation friend. His practice is to agree to act only if there is funding for the protected party's litigation costs, because his own budget – the monies voted to him by Parliament – is not sufficient to enable him to fund the costs of litigation of the type the father is involved in. The Official Solicitor was willing to act here only because the father's solicitor and counsel have agreed to act, thus far, pro bono. But without the protection against an adverse costs order which the father (and derivatively the Official Solicitor) would enjoy if the father had legal aid, the Official Solicitor has a possible exposure to an adverse costs order – for instance, if the local authority was to obtain an order for costs against him – which, understandably, he is unwilling to assume. The consequence is that the Official Solicitor was not willing to act as the father's litigation friend unless [indemnified].”
[34]Miss Morris has drawn my attention to PD21, paragraph 3.4 which makes specific provision for the Official Solicitor in this context. It is as follows:
“Where it is sought to appoint the Official Solicitor as the litigation friend, provision must be made for payment of his charges.”
[35]She does say that this is not very accurately drafted because the Official Solicitor does not “charge” for acting as a litigation friend as such (the cost of doing that is met from his central government funding), but the paragraph should be understood to refer to the costs of the protected party’s legal representation. That is, of course, what the Official Solicitor understood the MDU to be accepting liability for in this case.[36]The Official Solicitor’s own publicly issued guidance on when he will act as a litigation friend contains the following passage under the sub-heading of “Cover for the Official Solicitor’s Costs” (a Practice Note dated March 2013 entitled ‘Practice Note: The Official Solicitor to the Senior Courts: Appointment in Family Proceedings and Proceedings under the Inherent Jurisdiction in Relation to Adults’ being to broadly similar effect):
“The Official Solicitor does not charge for acting as litigation friend, but does require funding for the costs of instructing solicitors to act in the litigation, or for his own charges where he also acts as solicitor. The Official Solicitor is not funded to subsidise private litigation and will only consent to act in a particular case if his costs are guaranteed from the outset. If legal aid or a CFA is not available but a protected party has assets, the Official Solicitor will require an order from the Court of Protection authorising him to act and to take his costs from the protected party’s assets. Where the litigation involves an estate or trust fund he may agree to act if there is agreement that his costs will be met from that estate or trust. Where the Official Solicitor is asked to act for a defendant and there is no other method of funding his costs of obtaining legal representation, he will require an undertaking from the claimant to meet his costs ….”
[37]Mr de Navarro, supported by the other parties, and by Mr Kellar on behalf of the claimants separately, submits that the court has insufficient information before it to be satisfied that the Official Solicitor is correct to rely on the simple assertion from the MDU that it had withdrawn funding for the future, bearing in mind that his “understanding” at the outset was that the funding would continue, and contends that I should give some directions to enable this to be further investigated and to find out, for example, what steps the Official Solicitor has taken to try to hold the MDU to the terms of its original funding commitment. I am unable to see what purpose this would serve. The Official Solicitor has told me, via Ms Maughan’s witness statement, about the background which I summarised in paragraphs 9-12 above. Naturally, I accept that statement as having been made in good faith. Neither the Official Solicitor is nor am I in a position to compel the MDU to fund the Official Solicitor in this litigation. I cannot see what more can be done.

McGowan J’s orders

[38]I have had the benefit of much more extensive argument and assistance than was afforded to McGowan J. However, it seems to me that she was entirely justified (and almost certainly obliged) to make the orders asked of her relating to the cessation of the involvement of the Official Solicitor and Ryans.[39]Given the concerns she had about the impact of those orders on the litigation as a whole, it might have been open to her to adjourn the application so that the other affected parties could make representations about the way forward, but there is no doubt, to my mind, that the application before her was properly constituted. However, the opportunity to make representations has now been taken before me and I cannot see how I could myself have declined the application made by the Official Solicitor and indeed the solicitors whom he had instructed on his behalf to cease to act.[40]Nevertheless, plainly the present situation is not satisfactory from the point of view of any party, most particularly the claimants (and other potential claimants) and some way must be found of injecting new life into the proceedings to enable the claims to be considered properly.[41]I should say that the Official Solicitor has made it abundantly plain that he has no desire to act in a way that obstructs these proceedings and recognises that it is in the interests of all parties to proceed to a speedy resolution. He has also made it clear that if alternative sources of funding can be identified he would be quite prepared to continue acting as Mr Paterson’s litigation friend. He is, Miss Morris tells me, also willing to take such other steps as he properly can in order to assist the court resolve the situation that has now arisen. I am told that an approach has been made to Mr Paterson’s two attorneys appointed under a lasting power of attorney (believed by the Official Solicitor to be for property and affairs), but they have indicated that they are not proposing to fund the litigation. None of the parties before me have volunteered to fund the Official Solicitor’s costs either fully or partially. They each have put forward reasons why they say such a course would be inappropriate. I ventured the view during the course of the argument that adopting this position may mean that the claims could never proceed if all other options were exhausted.

The way forward

[42]I have thought it right to decide the one issue of principle (namely, whether I can, in effect, compel the Official Solicitor to continue acting) raised in the applications before me. I have dealt with that issue. The position from here seems, however, to be one best approached by taking the next steps stage by stage so far as possible.[43]The first point to note is that, whilst hitherto the claimants have been prepared to approach the litigation on the basis that Mr Paterson does require a litigation friend, they have now raised questions about that. As I have already observed (see paragraph 12), Master Roberts saw a Certificate of Capacity completed by a psychiatrist that justified him in concluding that Mr Paterson lacked capacity to conduct the proceedings. However, Mr Kellar tells me that his instructing solicitors have been in contact with the police who are investigating whether any criminal liability arises out of Mr Paterson’s actions and the claimants’ advisers infer from the fact that the police have interviewed Mr. Paterson that he has capacity to deal with those investigations. They are, I am told, willing to provide material (including a report) relevant to the issue of Mr. Paterson’s capacity if ordered to do so by the court. I will return to that shortly.[44]I am also told that Mr Paterson faces ongoing proceedings before the General Medical Council which will, presumably, require him to give instructions, the suggestion being that he is capable of conducting those proceedings.[45]It is obvious that if Mr Paterson does not lack capacity to conduct these proceedings the issue of a litigation friend becomes irrelevant. Since the issue appears to be raised in a way that is not simply tactical and may have a basis worthy of investigation, it seems to me that the logical first step is to resolve that issue. If the conclusion is that Mr Paterson remains a protected party, the question of how the Official Solicitor is to be funded as his litigation friend will have to be considered further. For reasons I will give below and with his consent, I am proposing to transfer these proceedings to Charles J and, accordingly, any decisions to be made arising from the resolution of that issue (including, if it is contested, the resolution of that issue itself) will be matters for him.[46]However, there seem to me to be at least three potential avenues for securing the funding of the Official Solicitor if Mr Paterson is considered still to be a protected party. They are as follows:(a) If Mr Paterson has capacity to manage his property and affairs (but not the litigation) then, if he wishes, he can ask the Official Solicitor to act for him if he puts the Official Solicitor in funds.(b) If Mr Paterson lacks capacity to manage his property and affairs, the Court of Protection would have jurisdiction to intervene if invited to do so and, possibly with the co-operation of Mr Paterson’s attorneys or on the basis of the appointment of a Deputy, power to ensure that the Official Solicitor is properly funded.(c) If these avenues are not fruitful, the High Court would, in my view, have the power under its general case management provisions and/or the inherent jurisdiction of the court to direct that one or more of the parties to the litigation should fund the Official Solicitor’s costs of instructing lawyers for Mr Paterson, the initial outlay to be recoverable as part of the costs of the litigation in due course.[47]Whilst all judges of the Queen’s Bench Division are judges of the Court of Protection, the situation in the present case is(a) sufficiently unusual and(b) appears at this stage possibly to require the intervention of the Court of Protection, that transfer to Charles J, a judge of the Queen’s Bench Division and President of the Administrative Appeals Chamber of the Upper Tribunal and Vice President of Court of Protection, represents a sensible and expeditious way of ensuring that the relevant expertise and experience is brought to the issues requiring resolution. He has kindly agreed to accept the case.[48]In order for the issues concerning Mr Paterson’s capacity to be addressed properly when the matter is referred to Charles J, I am proposing to take steps to ensure that Mr Paterson’s status is properly and fairly addressed. Although Mr Kellar suggested that the claimants’ and Defendants’ advisers might fund the appointment of psychiatrist to examine and report on Mr Paterson, I do not think it is right that the court should (certainly in the circumstance of this difficult and sensitive case at the point it has now reached) act on the basis of a report commissioned by, in effect, “one side” in that litigation. That does not mean that the claimants and Defendants may not have a legitimate interest in the issue (and indeed obtain their own report upon Mr Paterson), but I consider that the Official Solicitor should be given the resources with which to commission a report from an expert or experts of his choosing and, as I have said, that the claimants and Defendants (collectively) should, if they wish, be entitled to have Mr Paterson examined also. My direction will be that, if they do choose to commission their own report, there should be a joint examination of Mr Paterson by the experts appointed by the Official Solicitor and by them. The experts may disagree, of course, about their conclusions, but it would be sensible for there to be one examination so that all experts see Mr Paterson at the same time.[49]In order to kick start this process and break what would otherwise be a log jam in proceeding further, I propose to direct (under my general case management powers under CPR 3.1(2)(m) and/or under the court’s inherent jurisdiction) that the claimants, the 2nd and the 3rd Defendants each pay to the Official Solicitor within 14 days the sum of £2,500. Out of the sum of £7,500 thus provided the Official Solicitor is to be at liberty (i) to instruct a suitable expert or experts to examine Mr Paterson with a view to reporting on whether he possesses or lacks capacity (a) to conduct this litigation and/or (b) to manage his property and affairs (in accordance with the approach to both issues set out in the Mental Capacity Act 2005) and (c) to take advice on the implications of such opinions. I do not think that my directions can go further than that at this stage. I would, however, anticipate that if there is a contest about Mr Paterson’s capacity to conduct the litigation, that issue would be determined by Charles J as a Queen’s Bench Division Judge. If it is accepted by all parties, or concluded by Charles J, that Mr Paterson remains a protected party, then any issues concerning the funding of the Official Solicitor that require the intervention of the Court of Protection could be dealt with by him as a Court of Protection Judge and any issues that fall to be dealt with under the normal High Court jurisdiction can be dealt with in his capacity as a Queen’s Bench Division judge.[50]In order that the Official Solicitor has as much information as possible before instructing his own expert or experts, I will order that the police should disclose to him within 7 days such matters, as in their view, go to the question of Mr Paterson’s capacity to address and consider important matters appropriately and to direct that the solicitors acting for him in the GMC proceedings should write to the Official Solicitor within 7 days indicating whether, in their view, Mr Paterson is capable of understanding and participating in those proceedings and whether he is capable of giving instructions. I will, of course, give each of those parties liberty to apply to me in writing (on 48 hours written notice to all the other parties) to discharge those orders if for any reason they feel that the order should not have been made.[51]The sums of £2,500 are small by comparison with the overall costs of this case and my estimate is that it should be sufficient for the Official Solicitor to take the steps I have indicated and to put the matter before Charles J (initially in written form) in due course. I cannot think that any party (including the claimants who have CFA arrangements with insurers) can legitimately complain about finding such a sum for the limited purposes that dictate the need for funding of this nature. However, I make the order(i) without prejudice to the right of any of the parties to argue, if the position in paragraph 46(c) above is reached, that it would be inappropriate to make such an order and(ii) on the basis that the present expenditure is an item of cost that will fall to be recovered or paid by a party at the end of the case.[52]If there is a balance left over after the Official Solicitor has taken the steps I have indicated, that balance should be distributed equally between the Claimants and the two defendants. If the sum is insufficient, in the absence of agreement that the three parties should between them make up the difference, the matter can be referred in writing to me for resolution.

The stay

[53]Various submissions have been made to me about whether there should be a stay of the proceedings pending resolution of the question of the further involvement of the Official Solicitor and whether any stay should be effective as against one of the Defendants rather than the other or whether it should operate against both. The claimants resist the continuation or imposition of any stay (see paragraph 20 above).[54]I think it is premature to reach any conclusion about those issues. What I am proposing to do, however, is to stay any further proceedings generally for a limited period (8 weeks) to enable the investigation of Mr Paterson’s status in the litigation to be resolved. I propose to set a short timetable so that no significant prejudice should be occasioned to any party, particularly the claimants. The timetable will run from the date of the sealing of the order giving effect to this judgment. The precise phraseology of the order can be the subject of further consideration, but the essence will be as follows: That the claims of the five Claimants in these proceedings be stayed for 8 weeks save for the purpose of carrying into effect the following:(i) the payment by the Claimants and the 2nd and 3rd Defendants of the sum of £2,500 each to the Official Solicitor within 14 days;(ii) the instruction by the Official Solicitor within 14 days of receipt of the total sum of £7,500 of a suitable expert or experts to examine and report on Mr Paterson in accordance with paragraph 49 of the judgment;(iii) the examination of Mr Paterson within 42 days either by the expert or experts instructed by the Official Solicitor solely or, if the Claimants and Defendants have chosen to have Mr Paterson examined, jointly by the experts instructed by the Official Solicitor and by those instructed by the other parties;(iv) the submission to Charles J in writing within 14 days of receipt of the report of the examination of Mr Paterson by the expert(s) instructed by the Official Solicitor (and each of the other parties if they have chosen to have Mr Paterson examined) of the results of the examination and his (the Official Solicitor’s) current assessment of the position.[55]At the end of the period of 8 weeks the stay I have imposed will expire by effluxion of time. This will mean that any existing stay will still be in place at that time and, accordingly, any party seeking its removal will have to apply to the court for it to be set aside. At present that issue is to be considered by Master Roberts. It is, I think, too early for me to say whether, in the circumstances then prevailing, it would be better for any applications currently pending before him to be transferred to Charles J for resolution: the advantage of the matter remaining with Master Roberts is, of course, that he has a detailed knowledge and understanding of the litigation thus far. The contrary consideration is that, if there remain complications relating to the funding and the status of Mr Paterson, it may be better that all issues are before one judge to case manage all issues. I think I must leave that to either Master Roberts or Charles J to consider in due course.[56]It will be appreciated that, having made the decision of principle to which I have referred, I have approached all other matters on an essentially pragmatic basis with a view to ensuring that these cases can proceed.[57]I should be grateful if Miss Morris and Mr Ruck Keene could take the initiative in formulating a draft order that gives effect to this judgment and inviting the assistance of all other Counsel to ensure that all relevant matters are addressed.

order

CPR 21.6(5)) of being a person who can “fairly and competently conduct the proceedings on behalf of the … protected party” and “has no interest adverse to that of … the protected party.” A litigation friend who is being required to act on an unwilling basis will, she submits, almost by definition have an interest adverse to the protected party because his primary interest will be in bringing the litigation to an end as speedily as possible regardless of whether this is in the interests of the protected party. She also says, looking at matters more widely than the position of the Official Solicitor, that the reading of CPR 21.7(1) for which Mr de Navarro contends would “have a chilling effect on the ability of litigation friends to accept invitations to act.” She suggests that this would be particularly so where a case involves public funding where the criteria for such funding change on a regular basis and where, in any event, reassessment by the Legal Aid Agency of those who are publicly funded “but are on the cusp of having sufficient means not to be eligible” for such funding not infrequently leads to revaluation and the withdrawal of funding. She suggests that no litigation friend who needed to instruct lawyers to act for him would be prepared to act unless he had a cast iron guarantee that the costs of doing so would be met whilst acting as a litigation friend.

Cited in 4 later judgments