Page v Plymouth Hospitals NHS Trust

Callum Page was born by emergency caesarean section on the 21^st December 1996 at a hospital in Plymouth controlled and managed by the Plymouth Hospitals NHS Trust. His Apgar score was 0 after 1 minute. Thereafter there were incidents of fits and hypoxic ischaemic encephalopathy. It was subsequently identified that he had predominantly dyskinetic quadriplegic cerebral palsy; and he also has severe motor developmental impairments. His intellectual capacities, however, are unimpaired.

On the 15th January 2001 proceedings were issued on his behalf against the Defendant Trust. It was said that his injuries were caused by the negligence of the Defendant’s employees at the hospital. Liability has since been admitted. Quantum is in dispute, and a trial on the issue of quantum is scheduled for the end of 2004.

On any view, the projected amount of damages is likely to be very substantial. The claim currently is for a sum in excess of £5 million. A counter-schedule put in on behalf of the Defendant proposes a figure of around £2.25 million. For the purposes of the hearing before me, the Defendant has been prepared to proceed on the assumed basis that the award of damages will not be less than £2 million.

Although there is a dispute as to life expectancy, it is agreed that it is significant. The Claimant puts it to the age of 74.4 years and proposes a life multiplier of 33.54. The Defendant currently puts life expectancy to the age of 63.7 years and proposes a life multiplier of 30.51. Callum is now, of course, 7 years old.

As part of the claim for damages the Claimant seeks damages for the projected costs (in the form of investment advice and fund management charges) for the investment management of his award; and has relied on two reports of Mr Rowland Hogg FCA for that purpose. The Defendant disputes the Claimant’s entitlement to such an award. It seemed to the parties that the matter could appropriately be dealt with as a preliminary issue; and in the event a trial of such issue was directed by the Master by Order dated 13^th January 2004. The issue is rather compendiously worded. It reads as follows:

It is that issue which has come on for trial before me. The hearing lasted 2 days. The Claimant was represented by Mr Spink QC and Miss Guthrie. The Defendant was represented by Mr de Navarro QC and Miss O’ Rourke.

I was told that the issue debated before me has wider implications. The issue has generated acute differences of opinion amongst those specialising in personal injury litigation and advice: as seems to be borne out also by differing view points advanced by eminent textbooks in this field. It also appears that the correct resolution of this issue could have a significant impact on the size of total awards in cases of this nature. In the present case, for example, Mr Hogg has calculated that the sum needed to cover the cost of managing the investment of the Claimant’s damages for future loss at nearly £530,000 on an award of £2,500,000; and nearly £930,000 on an award of £5,000,000. Mr de Navarro has made it clear that, if there is to be a full trial on this matter, these figures are disputed root and branch; but it is, all the same, an indication of what claimants may seek to claim in cases such as this.

I should add that counsel before me were agreed that the preliminary issue before me did not extend to the administration costs of the High Court’s involvement (through the Public Trustee’s Office) in managing the Claimant’s affairs while he was under 18: although the issue would extend to the fees of any brokers that the High Court may retain to advise on investment of the award. I should also observe that counsel before me asked me to proceed, for the purposes of this preliminary issue, on the footing that “investment advice and fund management charges” were to be taken to include, and not to be differentiated from, actual transaction costs: and no separate legal argument as to transaction costs was advanced before me. I think this worth pointing out, since one can see some possibility for differentiation; but I proceed on that agreed footing, as asked, for the purposes of this preliminary issue.

To explain how this point has arisen it is necessary to go into some legal background.

The fundamental principle is this. The object of an award of lump sum damages is as nearly as possible to provide full compensation for the injury which a claimant has suffered: that is, to place the injured party as nearly as possible in the same financial position that that party would have been in but for the tort. The aim is to award such a sum of money as will amount to no more and no less than the net loss. It is acknowledged that this principle may necessarily have to operate in a rough and ready way and there may well be imprecision in the result in individual cases. But that, nevertheless, remains the object: see Wells v Wells [1999] 1 AC 345.

For very many years, the conventional approach involved the court calculating the net annual loss, typically comprising in the usual case as its principal elements the projected loss of future earnings and the cost of future care. To that (the multiplicand) there is applied the multiplier, calculated by reference to the number of years the loss is projected to last, adjusted to reflect contingencies and also adjusted to allow for the fact that the claimant will be receiving the lump sum award and will have it available to him earlier than otherwise would have been the case.

For a long time courts proceeded on the assumption that the discount to be applied in calculating the multiplier, reflecting what was called “the real rate of return” on investment after tax, was to be between 4% and 5%. The real rate of return was projected as the return after inflation: it being assumed that appropriate investment by the reasonable claimant would be in a mixed portfolio (essentially of equities, cash and gilts) which would cover anticipated inflation. The measure of the discount rate to be applied was thus the rate of return reasonably to be expected on the sum if invested so as to enable a claimant to meet the whole amount of his loss during the period which had been taken for it by the expenditure of income and capital. Further, as put by Lord Hope of Craighead in Wells v Wells at p 391 B-D:

A full exposition of the history of, and rationale for, the courts’ approach to the application of an appropriate discount rate can be found in the Court of Appeal’s judgment in Wells v Wells [1997] 1 WLR 652; [1997] PIQR Q1: as well as in the speeches in the House of Lord’s decision.

In 1981, index-linked gilt-edged stock (ILGS) was introduced by the government as a marketable security. During the 1980’s a body of opinion held that the discount rate should preferably be calculated by reference to the yield on ILGS. However the traditional approach, on the footing of presumed investment in a mixed portfolio (including equities), continued to hold sway in the courts. In 1994 a working party chaired by Sir Michael Ogden QC strongly advocated the adoption of the ILGS discount rate as the basis for the appropriate multiplier in place of the customary 4% to 5%. That recommendation in essentials was followed by the Law Commission in its own recommendations in the Law Commission Report No 224.

In Wells v Wells (and two related cases) the first instance judges were prepared to depart from the traditional approach in fixing the appropriate multiplier. They adopted a discount rate by reference to ILGS. In essence, their reasoning was that (applying the fundamental principle) the question was not whether it would be prudent for a claimant to invest in equities but whether investment of the award in ILGS would achieve the necessary object of compensation with greater precision: and in their view investment in ILGS would do that. That necessarily connoted a significantly lower discount rate (and hence higher amount of award of damages) than under the traditional approach. The Court of Appeal reversed these decisions. The Court of Appeal held, among other things, that a claimant in such a case was not to be put in some separate category distinct from the ordinary prudent investor; that ordinary principles of prudent investment had not in this context become outmoded by reason of the introduction of ILGS: and that, applying the fundamental principle, the traditional approach (on the basis that a claimant would probably be advised to invest in a mixed portfolio) remained valid. That decision of the Court of Appeal was reversed by the House of Lords. (It may in passing be noted that at least two of the cases considered in Wells v Wells involved patients: but the House of Lords did not seem to draw any distinction in that regard). The House of Lords decided that a claimant recovering a substantial lump sum award in personal injury litigation was not to be regarded as in the same position as an ordinary prudent investor: and that the applicable discount rate was to be fixed by reference to ILGS. The House of Lords decided that, on that approach, the appropriate discount rate was to be 3%, to be of general application in the typical case but to await the fixing of a rate by the Lord Chancellor under his delegated powers conferred by the Damages Act 1996.

The Damages Act 1996 in the relevant respects provides as follows:

On the 25^th June 2001 the Lord Chancellor (Lord Irvine of Lairg) made such an Order (SI 2001/2301), giving accompanying reasons. He fixed the discount rate at 2.5%. Very soon thereafter, objections were made that the Lord Chancellor had been provided with incorrect information as to the average gross redemption yield on ILGS for the three years up to June 2001. In consequence, the Lord Chancellor reconsidered the matter. Having done so, he maintained a discount rate of 2.5%, and declined to withdraw his previous Order of 25^th June 2001. He gave Reasons dated 27^th July 2001, expressly stating that he had considered the matter “completely afresh”.

The Lord Chancellor concluded that he should set a single rate to cover all cases; should set a rate easy for parties and their lawyers to apply in practice, and to the nearest half percent, to be used in conjunction with the Ogden Tables; and should set a rate which should endure for the foreseeable future. He abjured an inclination to “tinker” with the rate to take account of transient shifts in market conditions. He made clear that he proposed to apply the fundamental principle, and stated (at page 2 of his Reasons) “It is accordingly unrealistic to require severely injured claimants to take even moderate risks when they invest their damages awards.” He indicated that any approach to setting the discount rate must be “fairly broad–brush”. He indicated that he did not consider that he was obliged to follow the basic reasoning of the House of Lords in Wells v Wells as to the averaging of gross redemption yields on ILGS in deciding on a rate of 3%. The Lord Chancellor concluded that the average gross redemption yield on ILGS before tax was 2.46% and that “the net average yield on ILGS, as adjusted to take account of tax, lay in the range between 2% and 2.5%”. Given his decision to set the rate to the nearest half-percent, the discount rate was thus to be either 2.5% or 2.0%; and he stated that Wells v Wells did not require him to set one rate or the other. Stating that he had regard to the fundamental principle and to matters relevant to the setting of a discount rate which was just as between claimants and defendants as groups, he concluded that as at 25^th June 2001 he should have set the rate at 2.5%.

In so concluding, the Lord Chancellor went on to state that he noted that the real rate of return to be expected from ILGS tended to be higher the lower the rate of inflation was assumed to be. He stated that he considered it reasonable to assume a rate of inflation for the reasonable future lower than 3% and that in turn “provides comfort that the discount rate set at 2.5% is reasonable”.

He stated (as he had in his original Reasons) that he was “further supported” in his conclusion that a rate of 2.5% was reasonable by indications that the rate of return in respect of ILGS did not represent an undistorted real rate of return, for investments of minimal risk, having regard to the information provided to him by experts and to a consideration of rates of return on other available lower risk investments. Points regarded as significant (see pages 5-6 of the Reasons) were (1) the market in ILGS was currently distorted, so that prevailing yields could be regarded as “artificially low”; (2) the Court of Protection, even after Wells v Wells, had continued to invest (on behalf of claimants who were patients) in multi-asset portfolios comprising equities, gilts and cash in a way expected to produce real rates of return “well in excess of” 2.5%; and it appeared that “there are investment strategies available to claimants which would enable them comfortably to achieve a real rate of return at 2.5% or above, without their being unduly exposed to risk in the equity markets”; (3) it was likely that “real claimants” would not be advised solely or even primarily to invest in ILGS but in a mixed portfolio “in which any investment risk could be managed so as to be very low”. The responses from expert financial analysts to him were such that “this suggests that setting the discount rate at 2.5% would not place an intolerable burden on claimants to take an excessive (i.e. moderate or above) risk in the equity markets and would be a rate more likely to accord with real expectations of returns, particularly at the higher end of awards.” He also noted the power of the courts under s.1(2) of the Damages Act 1996 to adopt a different rate “if there are exceptional circumstances which justify [them] in doing so”.

On the 29^th November 2001 there was a debate in the House of Lords as to the Order, there being a motion for it to be revoked. Various speakers spoke for or against the motion. Baroness Scotland responded on behalf of the Lord Chancellor. It was common ground before me that I could have regard to what she said in this regard, which was stated by her to “explain and amplify” the decision reached: and although of course this was said after the Order was made and Reasons promulgated, it can be taken to be a fully briefed response as to the rationale for such Order and Reasons. In the course of her response, Baroness Scotland said this:

Dissatisfaction on the part of some has, so it would seem, nevertheless persisted. In Warriner v Warriner [2002] 1 WLR 1703; [2002] EWCA Civ 81, evidence - from, as it happened, Mr Hogg - was put in on behalf of the claimant to the effect that the projected award of £2.5 million would in fact, if invested in ILGS, achieve a net return of 1.63%; and it was said that the Lord Chancellor’s methodology in arriving at his average gross ILGS yield was “unfair”. That evidence was sought to be relied on to support an application under s.1(2) of the 1996 Act for some other rate of return. The evidence was ruled inadmissible. It was held that there were no exceptional circumstances justifying a different rate of return and that s.1(2) could not be invoked to circumvent the application of the prescribed 2.5% rate which was designed, on policy grounds, to be of general application.

That frontal assault on the prescribed discount rate having failed, a flank assault was launched in the case of Cooke v United Bristol Health Care [2004] 1 WLR 251; [2003] EWCA Civ 1370. In Cooke the claimant (again armed with reports of Mr Hogg) stated that costs of future care – the main issue in that case- historically increased at a significantly higher rate than represented by the Retail Price Index. A revised multiplicand, to reflect such faster rate of increase in care costs, was proposed: it being said that this was a “separate issue” from the discount rate of 2.5% prescribed by the Lord Chancellor. But, after a most helpful and clear review of the background, Laws LJ, with whom Carnwath LJ (with additional reasoning) and Mummery LJ agreed, held that the discount rate used in any lump sum award in any given personal injury case was the only factor to allow for future inflation and that the multiplicand could not be taken to allow for the same thing. The suggestion that the proposed calculations by reference to the multiplicand were a “separate issue” from the discount rate prescribed by the Lord Chancellor was roundly rejected, the arguments being described as “smoke and mirrors”.

In the present case the Defendant says, and the Claimant denies, that the claim for a sum of damages to reflect investment advice and fund management charges on the prospective lump sum award is, in substance, a further flank assault on the prescribed discount rate: which should likewise, according to the Defendant, be repelled.

The question of whether investment advice and fund management charges could properly be reflected in a lump sum award of substantial damages in personal injury litigation had become a matter of some controversy before the decision of the House of Lords in Wells v Wells and the Order of the Lord Chancellor.

So far as the researches of counsel in the case before me show, the matter was first the subject of judicial decision in the case of Francis v Bostock (November 8^th 1985). In that case, Russell J stated that a claim for damages in that regard was “misconceived and untenable” for a variety of reasons. Those reasons were stated as follows:-

There are, however, various first instance decisions to the contrary. The reasoning behind these decisions is perhaps most clearly explained in the decision of Mr Rodger Bell QC (then sitting as a deputy Judge of the High Court) in Anderson v Davis [1993] PIQR Q87. After citing the judgment in Francis v Bostock, Mr Bell QC said this:

Mr Spink submitted that the reasoning of Mr Bell QC in Anderson v Davis was correct. Mr de Navarro submitted that it was incorrect: although his principal submission was that it had been overtaken by the decision in Wells v Wells.

To the extent that Russell J (as part of his reasoning) concluded that a claim for the cost of investment advice was too remote as being a consequence of his award and not of the defendant’s negligence, that does not fit at all well with the reasoning of the Court of Appeal in Wells v Wells (not in this respect challenged in the House of Lords) where it was decided that the costs of a solicitor retained by the receiver of the claimant (Mrs Wells), who was a patient, were recoverable. It is true that the Court of Appeal expressly acknowledged (a p. Q40) that such a case could be distinguished from a case where the Court of Protection was not involved. Even so, the Court of Appeal went on (at p. Q41) to quote Anderson v Davis without disapproval and, on the contrary, with tacit approval. My own view is that the views expressed in Anderson v Davis have a good deal of force on that particular point. It seems to me, with all respect, that the contrary view as to remoteness is too narrow – indeed I would be tempted to say itself having an element of unreality, were it not that Otton J had said that of the view as it came to be enunciated in Anderson v Davis. The practicality, to my mind, was that, to achieve the net return of 4% to 5%, the claimant forseeably would need to have expert investment advice: that was required to achieve the requisite return. As Lord Steyn, speaking generally, said in Wells v Wells (at p386 B-C):

In Francis v Bostock, Russell J also thought (in the first part of his reasoning) that the award would “in itself” afford adequate compensation. That possibly leaves open the question of whether he was taking it that there was already factored into the award the element of the cost of investment advice in achieving adequate compensation (although the general tenor of his remarks seems to suggest that he was not). On the other hand, in Anderson v Davis it was asserted that the “reality” was that the award would not truly compensate the claimant “as the court intends it to do” unless the claimant took management advice, at a cost to him. But what is rather unclear to me is as to what evidence or argument there was in that case to show not just that the claimant foreseeably needed investment advice to achieve the required rate but in addition that he would otherwise suffer loss unless he was compensated for taking that advice to achieve the required rate. The assumption, all the same, seems to have been in Anderson v Davis that the then required yield was to be taken as gross, not net, of investment costs.

Be that as it may I am nevertheless of the view, that the decision in Anderson v Davis (and, indeed, Francis v Bostock) has been overtaken by the decision of the House of Lords in Wells v Wells.

In the course of his speech, Lord Steyn said this (at p387 A-C):

In my view, those observations indicate that the costs of investment advice were to be taken as included in an award of damages, applying the relevant discount rate; and not as separately recoverable. Further, on the approach of the House of Lords, (which approach fixed the discount rate by reference to the yield on ILGS) it seems to me that it would potentially be double recovery for a claimant both to get the lower discount rate (and hence higher award) on the basis of ILGS average yields and simultaneously to recover the costs of investment advice for a mixed portfolio including equities. Although Mr Spink was not initially minded to concede this, on further reflection he indicated that he did concede this. In my view, this concession was rightly made.

Mr Spink’s submission, however, was that even if that were so by reason of the House of Lords decision in Wells v Wells, it ceased to be so after the Order of the Lord Chancellor: in consequence of which, he submits, claimants are again entitled to claim, as part of their damages, the costs of investment advice, pursuant to the principles enunciated in Anderson v Davis.

I will have to deal with that submission in due course. But it may be observed that it does not coincide with three separate High Court decisions on the point, pronounced after the 27^th July 2001.

The first is the decision of Judge Dean QC (sitting as a Judge of the High Court) in Webster v Hammersmith Hospitals NHS Trust [2002] Med Lit Cases 082Q. The issue was, it is plain, thoroughly argued before Judge Dean; and because his reasoning is so clear, I think it appropriate to quote it in full:

A similar conclusion was reached by Judge Fawcus (sitting as a Judge in the High Court) in the case of Anderson v Blackpool etc NHS Trust (unrep; 20^th March 2003). He concluded that “despite the attraction of Bell J’s reasoning” [viz in Anderson v Davis] that case had been overtaken by Wells v Wells and that it was unreasonable to expect a defendant to recover damages for advice that may provide a better return than investment in ILGS. (Judge Fawcus was, however, prepared to award £25,000 as a one-off charge for advising the claimant, who was, as the judge found, unable to manage his own affairs). And in the case of Eagle v Chambers [2003] EWHC 3213 QB; 19^th December 2003), being a case where the claimant was a patient, Cooke J, for brief reasons in what seems to have been a shortly argued and relatively small element of the case before him, concluded that (despite it being common ground that the award would be invested in a mixture of investments) it appeared to be the “inevitable consequence” of the principle of Wells v Wells that damages had to be assessed “on a uniform basis in the round” (as he put it). In consequence he refused to award damages for panel brokers’ fees. I was told that an appeal from that ruling is pending.

It is the submission of Mr Spink that those three cases were incorrectly decided on this point – in particular, because they failed to have due regard to the effect of the Lord Chancellor’s Order of 25^th June 2001 and the Reasons given for that Order. I turn, then, to the competing submissions in this case.

On behalf of the Claimant, it is, in summary, submitted as follows:

Mr Spink supported his submissions as to what was intended by the Lord Chancellor by reference to a number of subsequent consultation papers, some emanating from the Lord Chancellor’s Department. In my judgment (and contrary to a submission of Mr de Navarro) some regard may properly, in a context such as the present, be had to such materials: although I think they are of limited weight.

For example, in the Lord Chancellor’s Department’s Consultation Paper on Damages for Future Loss (March 2002) it is noted at paragraph 19, without adverse comment, that large awards often include provision for financial advice; and in paragraph 9(c) of the Annex it is stated that one effect of an order for periodical payments would be to lower claimants’ investment advice costs “with consequential savings for defendants and their insurers”. In the Regulatory Impact Assessment for the then Courts Bill as to the power to order periodical payments, published in November 2002, it is stated that damages awards can include an allowance for investment advice and management fees “which inflates the value of the award”: see paragraph 24 and cf paragraphs 28-30 of the Annex. The report of the highly experienced working party on Structured Settlements (August 2002) referred to the “potential” for a further claim to be added as part of the damages to cover such investment costs (it being noted, however, in a footnote that that “remains controversial”). The explanatory note to the Courts Bill (20^th May 2003) suggests, at paragraph 315, that an order for periodical payments would create savings for the NHS in that such an order “would not need to include the Claimant’s costs for investing a lump sum … ”

Mr de Navarro told me that his impression was that in the immediate aftermath of Wells v Wells claims for damages under this head were infrequent but that they have become rather more frequent since the Lord Chancellor’s Order. Some claimants have made such a claim; others have not. Where there have been settlements, I was told that sometimes no (or minimal) regard was paid to such a claim, if made; sometimes, on the other hand, it has featured significantly. I was referred to an agreed award, noted in Kemp and Kemp on Damages, in the case of Evjet v Aid Pallet (unrep; March 11^th 2002) where an agreed head of £300,000 (as part of a total award of £2 million) included, in part, such an element. The commentary to the report of such case in Kemp and Kemp at Appendix A 5-283/7 includes the following observations (which in many respects are a succinct encapsulation of the principal way Mr Spink puts his case):

On behalf of the Defendant, on the other hand, it is submitted, in summary, as follows:

I have come to the conclusion that the Defendant’s arguments are to be preferred.

It is plain that when the Lord Chancellor fixed the discount rate at 2.5% he did so with the intention of abiding by, and fulfilling, the fundamental principle. He says so in terms. He further made clear that he wished to achieve certainty and consistency for the usual case and was averse to tinkering.

In my view, the Lord Chancellor was essentially prescribing the discount rate by reference to ILGS and not a mixed portfolio. I consider that that can be seen to be so both from the structure and from the express statements in the Reasons. It is true that he indicated that he did not regard himself as bound to follow the reasoning of the House of Lords: but those comments were made in the context of the assessment of the average gross redemption yield and of the establishment of a rate of 3%. He did not, as I read the Reasons, indicate an intention to depart from the yield on ILGS (as opposed to a mixed portfolio) being the reference point for fixing the discount rate. As the Lord Chancellor in terms said in part of his Reasons: “It is accordingly unrealistic to require severely injured claimants to take even moderate risks when they invest their damages award”. In my view the observation of Baroness Scotland in the debate in the House of Lords was well founded: the Lord Chancellor had followed the decision in Wells v Wells and decided that he should use the average yield on ILGS as “the benchmark for setting the rate”.

I have concerns that the present claim does, in substance, represent an indirect attack on the Lord Chancellor’s Order prescribing the rate. As Laws LJ said in paragraph 28 of his Judgment in Cooke, the courts cannot depart from the Lords Chancellor’s discount rate (save in a case properly falling within section 1(2) of the 1996 Act) whether the means of doing so are direct or indirect.

I accept, in this regard, that the present case is distinguishable from Cooke. In Cooke, the attempt was made to cover care costs said to be likely to increase way in excess of inflation by putting forward a multiplicand increased to cover the cost of such anticipated inflation: it being said, that if that were not done, an application of the conventional method would result in a failure to achieve the fundamental full compensation principle. But, as Laws LJ demonstrated, it was fallacious to regard as a “separate issue” the issue of earnings or care costs increasing at a greater rate than general inflation as measured by the Retail Price Index. On the contrary the multiplicand was to be treated as based on current costs at the date of trial: and in a lump sum award in a personal injury case the discount rate was designed to be the only factor to allow for relevant future inflation. But in the present case it can be said (and Mr Spink does say) that here investment costs are an annual impost and properly therefore to be regarded as an aspect of the multiplicand. That I readily follow.

Even so, I have doubts: and for this reason. It is plain enough from the reasoning of the House of Lords in Wells v Wells, and it also, in my view, is implicit in the Lord Chancellor’s Reasons, that investment costs are contemplated as arising in respect of the investment advice anticipated to be obtained by a claimant. But investment advice (on the Claimant’s own approach) relates to the setting of the appropriate discount rate. Thus although the annual investment costs can be presented as an element of the multiplicand to which the appropriate multiplier is to be applied, in my judgment they are, for these purposes, in substance to be regarded as within the “territory” (to use a word employed in argument) of the applicable discount rate.

Mr Spink, however, submitted that by virtue of the Lord Chancellor’s reasoning in particular set out at page 6 of the Reasons, a claimant is required (in the sense of obliged) to invest, in part, in equities if he is to achieve at least a net return of 2.5%; and accordingly he submitted that a claimant is entitled to claim the investment advice costs required to be incurred in order to achieve that result. Indeed he suggested that it was only because of that requirement so to invest that the Lord Chancellor was able to round up to 2.5% rather than round down to 2%. On that basis, it is said that, consistently with Anderson v Davis a sum to cover such investment costs is properly claimable by way of damages.

In my judgment, however, that is not correct. It is true that, in some financial contexts, the phrase “real rate of return” may be taken simply to mean the rate of return after allowance for inflation. It is also true that the Lord Chancellor, in respect of his conclusion that the appropriate discount rate was 2.5%, said that he was “further supported” by various other matters, including the continuing practice of the Court of Protection investing in multi-asset portfolios in a way expected to produce real rates of return well in excess of 2.5% or at least comfortably achieving such a rate of return; and that he took into account the fact that it was likely that “real claimants” would invest in a mixed portfolio, thereby suggesting that a discount rate of 2.5% would not place an intolerable burden on claimants. Baroness Scotland also adverted to these points in the debate in the House of Lords. But I do not myself read these reasons as requiring a claimant to invest in a mixed portfolio: rather I view them as in effect points of reassurance, by reference to what claimants may be expected to do in practice, to support the appropriateness of a rate of 2.5%. Were it otherwise the Lord Chancellor would in effect be sanctioning a return to the position prior to the decision of the House of Lords in Wells v Wells. And in my view that is not the tenor of the Lord Chancellor’s Reasons, when read as a whole, at all. Further, I think it is a point of comment that the Lord Chancellor, although taking the view that investment in a multi-asset portfolio would yield a return “well in excess of” or “comfortably achieving” 2.5%, did not fix the rate any higher than 2.5%.

Moreover, I find it difficult to think that the Lord Chancellor, in making these observations, could or would have overlooked the attendant costs involved in seeking investment advice in setting the discount rate as he did. It is true that the Lord Chancellor does not expressly say that he had taken them into the account (and Mr Spink told me that the point seems not to have been explicitly raised in the preceding consultation process). But in my judgment it is inherent in the Lord Chancellor’s reasoning: and that is of a pattern with the observations of Lord Hope and Lord Clyde in Wells v Wells. Thus when, in the course of his reasons, the Lord Chancellor refers to the position about investment on mixed asset portfolios, I think it likely that he was there referring to a real rate of return “comfortably” exceeding 2.5% as connoting a return net not only of tax but also of investment costs.

Mr Spink did rely, in this context, on the observations of Latham LJ at paragraph 44 of his judgment in Warriner, where this was said:

Such a conclusion, to my mind, has the advantage of creating certainty. The desirability of achieving, on the one hand, certainty and the desirability of retaining, on the other hand, flexibility are competing considerations in many areas of the law. But this is an area of law where the objective of certainty (and notwithstanding the prima facie width of the discretion conferred under s.1(2) of the 1996 Act) currently – and for clear policy reasons - seems to hold sway. Mr Spink submitted that such a consideration was irrelevant if this head of claim was treated as part of the multiplicand: for that, he observes, constantly (for example, in future cost of care cases) gives rise to uncertainty and dispute. He further said that, in any event, one or two test cases could be expected speedily to establish the appropriate approach to awards under this head. But, as I have sought to say earlier, I do not think that such a claim is to be regarded simply and solely as an aspect of the multiplicand. In addition, I would query (not least because life expectancies and the assessment of prevailing and future market conditions will vary from case to case) whether potential disputes as to quantum under this head would speedily become limited. In my judgment, considerations of certainty reinforce the Defendant’s arguments.

The relevance of the issue of certainty seemed to me to be yet further reinforced during Mr Spink’s submissions. In his opening submissions he argued that all the costs of investment advice and fund management charges should in principle be recoverable as damages. But in reply he shifted. He said that the costs so recoverable were not all those incurred by any claimant (for example, one choosing to invest in a very high percentage of equities): rather the recoverable costs were those limited to the investment advice needed to match the Lord Chancellor’s projected real rate of return of 2.5%. That immediately raises the difficulty of how that calculation is to be made. Certainly it cannot be assessed by reference to the postulated net of tax figure of 2.09% - not least because of the Lord Chancellor’s express observations as to the distortions in the prevailing ILGS market. The point, at all events, raises obvious difficulties; and is not obviously covered in Mr Hogg’s reports (in paragraph 3.7 of his first report he refers to “the investment criteria contemplated by the Lord Chancellor” – but he does not identify just what those are said to be).

It had been and remains the complaint of many who advise claimants – the view on behalf of defendants is quite different – that a discount rate of 2.5% has proved insufficient fully to compensate claimants. Complaints of that kind, however, have already been roundly rejected both in Warriner and in Cooke: in effect, just because it is the Lord Chancellor who has decided the matter. It is clear from the Lord Chancellor’s Reasons that political, economic and policy considerations apply here, with which the courts are not well equipped to deal (cf. the judgment of Carnwath LJ in Cooke). I take the view that if claimants (such as the present claimant) consider that they have a grievance and that the prescribed discount rate will not, in the event, have operated to fulfil the fundamental principle of full compensation, the remedy is to seek to persuade the Lord Chancellor to prescribe a different (and lower) discount rate.

Mr de Navarro also submitted - in his oral arguments he in fact advanced this as his first submission - that in any event there was a “fatal flaw” in the claimant’s case on the preliminary issue. He submitted that the Claimant must prove that he had suffered loss caused by the tort of the Defendant; and therefore must set out to prove that (on the balance of probabilities) he would not achieve a net real rate of return of 2.5% after payment of the costs of investment advice and management charges. But in neither of the two reports of Mr Hogg is this asserted.

In the present case, Mr Hogg in paragraph 3.10 of his first report stated (as he had stated in his reports in Warriner) that the net return for the Claimant if his award were invested solely in ILGS would result in a substantial shortfall: he says that in the present case the net return on such a basis would “probably be crystallised at less than 1.5%”. What Mr Hogg says on the present point, however, is to be found in paragraph 3.8 of his first report:

I in fact agree with that submission. The ordinary rule, of course, is that it is of no concern to the court as to what a claimant does with his damages – whether he fritters them away or thriftily invests them. But here the rationale of such a claim is that a claimant cannot be expected to achieve a net real rate return of 2.5% without investment in a mixed portfolio. It is thus inherent in the Claimant’s argument that investment (in part) in equities is a required form of investment, needed to secure for any claimant the return of 2.5% (net). But if such investment is so required, and if that investment will yield 2.5% or more even after allowance for investment costs and fund management charges, then the individual claimant will have suffered no loss caused by the tort in that regard. It therefore seems to me that claimants would in any event need to adduce evidence to address that point if they are to establish loss. In the present case this has not been done. Mr Spink, I might mention, did in the course of argument, in order to rebut the suggestion that on his case the Claimant potentially might in this respect be in breach of the fundamental principle by being overcompensated, assert that in reality the future costs of care and the like will always increase at a rate much greater than the Retail Price Index. But in the light of Cooke that is not an available argument.

However I am reluctant to decide this preliminary issue on this “fatal flaw” ground alone: because it may be, perhaps, that Mr Hogg thought it implicitly covered in his Reports or, at all events, it may be, perhaps, that further evidence could be adduced on behalf of the Claimant to cover that point.

During the course of his opening submissions, I asked Mr Spink if he was seeking to rely on s.1(2) of the 1996 Act as a mechanism for achieving the overall result desired by the Claimant. What I had mind were the observations of Dyson LJ in Warriner at paragraph 33 of the Judgment, where he said this:

In my judgment, reliance on s.1(2) does not avail Mr Spink. First, this case cannot (as Mr Spink accepted) be said to fall into a category that the Lord Chancellor had not taken into account. Secondly, there are no “special features” which an examination of the Reasons shows not to have been taken into account – on the contrary, as I have previously said, the probability of a claimant taking investment advice and incurring cost in doing so in my view had been taken into account by the Lord Chancellor.

It is perhaps a point of comment all the same that this claim is considered capable of being advanced, albeit in the alternative, by reference to s.1(2). (Mr de Navarro in fact noted that the size of the award under this head as argued for by Mr Hogg – if correct – would in very approximate terms be equivalent to an applicable discount rate of 2.0%). At all events, it does not remove my concern that this claim, in seeking damages for the cost of investment advice and fund management charges, may represent an indirect attack on the discount rate of 2.5% as prescribed by the Lord Chancellor’s Order.

I therefore think that the Defendant’s submissions are well founded. It also follows that I agree with the decisions on this point of Judge Dean QC in Webster and Judge Fawcus in Anderson v Blackpool etc NHS Trust. (I would however disagree with Judge Fawcus when he went on to award, as being reasonable, a sum of £25,000 as a “one-off charge” for advising the claimant. The reasoning for that, with respect, is rather difficult to follow, and includes an incomplete citation from the speech of Lord Clyde. In my view, accepting that transaction costs and advice costs will necessarily be incurred in acquiring and dealing with any portfolio, even a portfolio of gilts, the observations of Lord Hope and Lord Clyde indicate that recovery even of such costs is precluded. Whether they are in truth to be regarded as so insubstantial as to be treated as minimal might be queried: but that is the approach of Lord Hope and Lord Clyde, seemingly on pragmatic grounds.) It also follows that I agree with the decision of Cooke J in Eagle v Chambers in disallowing panel brokers’ fees: for my present view is that, for these purposes, there is no distinction to be drawn between Court of Protection cases, in this particular regard, and other cases.

Accordingly I hold that the Claimant is precluded from recovering as damages the costs of investment advice and fund management charges incurred in the management of the prospective award. The preliminary issue is therefore to be decided in favour of the Defendant.