TLA v Chelsea and Westminster NHS Foundation Trust

On 2^nd December 2021 the Claimant commenced a claim against the Defendant NHS Trust identifying a wide range of causes of action and seeking damages (amongst other remedies). The Claim arises from the Defendant’s role in treating the Claimant in a clinical setting as a patient and includes allegations of negligence, breaches of NHS policy, direct disability discrimination, victimisation, breaches of Articles 3 and 8 of the European Convention on Human Rights, breach of confidence, and breaches of the Data Protection Acts of 1998 and 2018. This application arises from the underlying claim.

The Claimant seeks no less than 24 mandatory orders from the Court. The orders sought are wide ranging though can be grouped under 7 broad headings with considerable overlap between them:

The Defendant resists the making of each of the orders sought on diverse grounds but in particular asserting that many should be dealt with in directions relating to the underlying claim, complaints are outwith the jurisdiction of this Court, no properly arguable causes of action are identified, the Court cannot generally bind the defendant as to its future dealings with the Claimant, the appointment of an independent investigator is inappropriate and the Court has no jurisdiction to appoint one.

The Defendant invites the Court to dismiss the application, to record it as being totally without merit in accordance with CPR 23.12 and further to award the Defendant its costs in defending the application (acknowledging that the Claimant is protected by the Qualified One-Way Costs Shifting provisions in accordance with CPR 44.13 – 44.16).

The procedural history of this application is important. It was lodged with the Court on 5^th April 2024. On 23^rd May it came before Mrs Justice Heather Williams DBE who adjourned the application for lack of Court time and ordered that the application should be re-listed on the first available date in the Trinity term with a time estimate of three hours.

Thereafter, this application appears to have become ‘lost’ and has not been listed for substantive hearing before any Judge before being listed before me on the 16^th July 2025. The reasons for the application becoming ‘lost’ are not clear but have no bearing upon my determination of the issues that it gives rise to.

In the period between this application being made on 5^th April 2024, and my hearing it on the 16^th of July 2025, the underlying claim has continued and there have been a number of interlocutory hearings to determine other applications made by both parties. Very many of those applications have been determined by Master Sullivan who has case managed the claim since at least 24^th October 2022.

By an order of Master Sullivan sealed on 5^th December 2024 the Defendant was given permission to instruct an expert Consultant Psychiatrist, Dr Susan Bradbury, to provide expert opinion evidence in this case. In the report of Dr Bradbury, dated June 2025, she considered the Claimant’s capacity to litigate and concluded that on the balance of probabilities the Claimant lacked the capacity to litigate on the basis that he was unable to weigh information concerning the litigation as part of the process of decision making within the litigation process. The opinion of Dr Bradbury concerning capacity is strongly contested by the Claimant.

On 14^th July 2025 a further order of Master Sullivan was sealed following a remote hearing attended by the Claimant and the solicitor for the Defendant. Paragraph 1 of that order is in these terms:

The remaining Paragraphs of the 14^th July order of Master Sullivan are concerned with case management directions relating to the determination of the capacity issue.

In the course of the hearing before me I sought assistance from the parties as to whether Master Sullivan had considered staying this application when she stayed the claim in her order of 14^th July 2024, and whether any reasons had been expressed by Master Sullivan for her decision to exempt this application from the general stay that she imposed.

I was informed that Master Sullivan had considered whether to stay this application but that she had decided not to do so on the basis that the application was not technically listed before her, was very old, had become ‘lost’, should have been determined before any issue of capacity was brought to the attention of the Court by the Defendant and was listed imminently for hearing before the High Court.

Accepting that notwithstanding the order of Master Sullivan I have power to stay this application pending the determination of the capacity issue the Claimant urged me to hear and determine it now. He argued that the determination of the application was ‘a matter of life and death’ and the relief he was seeking would ensure that he was able to receive the medical treatment and prescription that he requires in order to treat his underlying health condition.

On behalf of the Defendant Mr Hill, very properly, did not positively invite me to stay this application. He drew my attention to the obvious conflict of interest in a Defendant positively seeking a stay on grounds of lack of capacity and submitted that it would be inappropriate for the Defendant, as the party opposed to the Claimant, to take any more than an administrative role in the Court’s determination of the issue. With conspicuous fairness Mr Hill did go on to identify two potential detriments to the Claimant that may arise were I to determine the application before the issue of capacity is resolved.

First, were I to consider that the application should be dismissed and also that it was totally without merit, I would be obliged by the provisions of the CPR to record that finding. Such a finding in respect of this application would be the second such finding in the course of these proceedings and the Claimant may then be at risk of the Court making a Civil Restraint Order pursuant to CPR 3.11 and Practice Direction 3C.

Second, if the application was dismissed the usual order would be for the Claimant to bear the Defendant’s costs in resisting the application. Although this is a case in which the Claimant has costs protection, should he ultimately be successful in the underlying claim and receive an award of damages, a costs order in this application may reduce those damages to his ultimate detriment.

In the event I allowed the Claimant to develop his arguments in support of his application and heard brief submissions from the Defendant as to the merits. In proceeding as I did I gave no assurance to the Claimant as to whether I would ultimately determine the application or stay it along with the underlying proceedings pending the capacity decision. I was particularly concerned to assure myself whether there were, to use the Claimant’s phrase, any ‘life or death’ issues that required urgent determination, or indeed any areas of common ground between the parties on the merits. I am entirely satisfied having heard the Claimant’s submissions at great length that there are neither.

Notwithstanding the unfortunate delay in this application coming before a Judge with sufficient Court time to determine it, I am satisfied that the fair and appropriate course is to stay it pending the determination of the capacity issue in the same way that Master Sullivan stayed all other elements of the extant proceedings.

Without expressing any concluded view on the merits this is not a case where there are any elements of the application to which there is no credible counter argument that could be advanced by the Defendant, nor are any elements of the application conceded.

It follows that the Claimant is at least at risk of a) the application being dismissed in its entirety b) a finding that it was totally without merit and c) an adverse order for costs. There is therefore more than a fanciful risk of an outcome that would be materially to his detriment in circumstances where a Court may subsequently find that he lacked the capacity to litigate his case at the time he advanced the application. In those circumstances it would be wrong to make a final determination of his application, just as it would be artificial to proceed to hear it but to fudge a finding that the application was totally without merit or as to costs so as to avoid any detriment arising.

For the reasons I have set out I decline to determine the Claimant’s application of 5^th April 2024. In common with the underlying proceedings this application is now stayed pending investigations to determine whether the presumption that the Claimant has mental capacity to conduct legal proceedings, as defined by the Mental Capacity Act 2005 has been rebutted.

The order of Master Sullivan of 14^th July 2025 giving directions in relation to the conduct and progress of the capacity investigations stands and applies with equal effect to this application.

I make no order for costs pending the outcome of the capacity determination.