Deputyship fees in Fatal Accidents Act claims- recoverable or not? The High Court says yes in Burgess v Silkorsky & Anor [2026] EWHC 1245 (KB)

In Graham Burgess v Dominik Sikprski & Anor [2026] EWHC 1245 (KB), the High Court considered whether professional deputyship fees are recoverable as damages under the Fatal Accidents Act 1976.

Background

This was a tragic case in which Mrs Griffiths was struck and killed by the Defendant’s vehicle whilst it was reversing up a residential cul-de-sac. Liability was admitted, with an agreed liability split of 70/30. Mrs Griffiths left behind her husband, Ian, and two adult children, Aaron and Matthew. Both Aaron and Matthew had moderate learning difficulties, with Aaron also suffering from epilepsy. Mrs Griffiths had provided a great deal of care and assistance for Aaron and Matthew, and both lacked capacity to manage their property affairs and finances.

The Issue

The judge awarded both Aaron and Matthew damages of £449,341 each, comprised of past and future services dependency, as well as loss of intangible benefits. Because they both lack capacity, Aaron and Matthew are classed as ‘protected beneficiaries’ under CPR Part 21, and the Court is required under CPR r.21.11(9) to direct the litigation friend to apply to the Court of Protection for the appointment of a Deputy, the sum recovered being over £100,000. It was agreed by both deputyship experts that this should be a professional rather than a lay deputy.

The issue then arose as to whether those professional deputy’s fees are recoverable under the FAA.

Submissions

It was the Defendant’s case that they were not recoverable as a matter of law. Under section 3 of the Act, the only damages recoverable are such damages, other than damages for bereavement, that “may be awarded as are proportioned to the injury resulting from the death to the dependants respectively”. They highlighted that common law rules do not apply to the assessment of damages under the FAA, and argued that whether a head of damage is recoverable is purely a matter of statutory construction.

The Court noted an entry in McGregor on Damages (22^nd Edition, 42-028), which succinctly outlines, considering relevant case law, what this means in practice for what can be recovered in dependency claims:

“There remains the loss of the pecuniary benefit arising from the relationship which would be derived from the continuance of the life and which may consist of money, property or services: in other words, the value of the dependency. The dependant is entitled, by clear principle of law, to full compensation for the loss of this pecuniary benefit, but, except for funeral expenses since 1934,interest since 1970,and the limited entitlement for bereavement since 1982,to no more.”

In other words, a dependent cannot claim losses which simply arise as the result of the death, but only those that represent the loss of any kind of future financial benefit the deceased would have provided, subject to specific statutory exceptions.

The Defendant argued that the cost of employing a deputy does not itself represent the loss of a benefit that Ms Griffiths would have otherwise conferred on her dependents had she lived, and instead arises as the result of her death. As there is no statutory exception for deputyship fees, it follows that these fees are irrecoverable under the FAA.

The Claimant argued that these fees were a “necessary corollary” to an award for loss of services and are therefore recoverable. This is because, using the wording of Jay J in Rupasinghe v West Hertfordshire Hospitals NHS Trust [2017] PIQRQ1 at paragraph 47, what the Act is concerned with are losses which flow from what the Deceased did when alive. Using this interpretation, the cost of appointing a financial deputy flows from the need to properly replace the services that Mrs Griffiths would have provided.

Judgement

The judge accepted that he must identify a pecuniary loss to the dependents, which must be the loss of a benefit in money or money’s worth which would have accrued if Mrs Griffiths had survived. He also accepted that the professional administration of a fund that has been awarded for the benefit of Aaron and Matthew is not in itself a benefit that Mrs Griffiths would have conferred had she lived, given there would have been no fund and she would not have qualified to administer it. However, he found that these costs should be recoverable as damages regardless.

The judge highlighted that when compensating a dependent for losses they have been deprived of, the Court must give “full compensation” for the loss of that benefit.  As to what that means in a given case, he decided that the Court must take a realistic view of what sum is needed to replace, in practical terms, the identified services that the deceased would otherwise have been providing.

By way of example, the judge highlighted case management costs. In order to ensure that care services are appropriately and properly administered, it is appropriate to incur case management costs to ensure that the services Ms Griffiths would have provided are properly replicated. The judge noted that the case managers are not themselves replicating what Ms Griffiths would have done herself, but their fees are a necessary corollary to ensure support workers are engaged in a way which properly replaces the services Ms Griffiths would have provided.

The judge decided that deputyship fees should be approached in the same way. Any sums awarded to replace future services would likely be incapable of being used without the appointment of professional deputies to unlock them. Therefore, deputy fees are also a “necessary corollary”, given that full compensation for the loss of services would also include the costs of allowing the dependants to make effective use of those funds.

Commentary

This judgment skilfully navigates a potentially tricky statutory position and arrives at what might be regarded as an equitable outcome. The alternative would have brokered a position wherein dependents receive sums to replace future services, which are immediately eaten up by the fees required to administer and implement them.

This was an issue that neither the parties nor the Court could find previous authorities on, and so the judge has granted permission for the Defendant to appeal on this issue.

The judgment is available here