There has been much commentary recently following the decision of Her Honour Judge Hilda in Re BJB [2024] EWCOP 59. In this case the claimant’s Property & Affairs Deputy was released from a Peter’s Undertaking, which had been approved following settlement of a personal injury claim in 2009.

On initial reading of the ‘headlines’ it appears to be an alarming and unusual turn of events and raises all manner of questions about jurisdiction, the interplay between the Court of Protection and the civil courts, as well as concerns about the impact upon pre-existing undertakings.

However, once you sit down to read the judgment and take stock of the situation, this does not appear to be a case that sets a clear precedence for other matters.  

Firstly, in relation to jurisdiction, HHJ Hilda dismissed the Deputy’s assertion that her jurisdiction arose from either s19 Senior Courts Act 1981, s471(1) Mental Capacity Act 2005 (“MCA 2005”) or s16(2)(a) MCA 2005. However, the periodical payment order in this instance included the following clause:

“The claimant and defendant are agreed that the claimant may be released from any of the undertakings given within this schedule at the discretion of the Master of the Court of Protection or his successor in the event that he is satisfied that the claimant does not have sufficient resources to meet his reasonable needs..”

HHJ Hilda concluded that her jurisdiction came from this clause, on the basis that it was open to ‘capacitous disputants’  to accept third party determination, if they so agreed. In this instance, the High Court had approved the settlement order containing this clause and it had been agreed between the parties’ legal representatives. 

As such, unless a settlement order contains this or a similar clause, it would appear that this decision is unlikely to affect other previously decided settlements. 

However, it does still sit a little uncomfortably that the Court of Protection has been asked to adjudicate over a decision would not be available to a capacitous person who would presumably need a decision from the QBD as to whether they could be released from a QBD undertaking. It is not a decision they could take themselves. That being said, if the capacitous person had agreed to the milkman acting as a third party (as mentioned in the judgment) to adjudicate the decision and this had been approved by the QBD then maybe that would be sufficient…

Once jurisdiction was decided much of the judgment is then focused on the question of the claimant’s resources, with the court ultimately concluding that the claimant’s funds would be depleted within 10–12 years. The claimant was in receipt of a package of care from the local authority that she was topping up. Interestingly, there is no decision about whether the local authority's package of care was sufficient, and no discussion as to whether the claimant would be liable for increased charges from the local authority once the undertaking was discharged.

Ultimately, this judgment is an interesting read and highlights to personal injury practitioners the mindset of the Court of Protection when making decisions and the things that they will (best interests) and will not (double recovery) take into consideration.