11 March 2016
Personal Injury Claims on Behalf of Children: Is Court Approval Needed?
I recently responded to a tweet from a fellow lawyer in another law firm who, whilst burning the midnight oil, was asking a sensible question as to whether you required the court’s approval for settlements in personal injury claims involving children.
The question interested me as I recently finished an unrelated case in the Queen’s Bench Division of the High Court that touched upon this very issue.
Parents often take the position that they can decide what’s in their child’s best interests without being “second guessed”. This is probably true in most of life’s events, but not when it comes to personal injury claims in the English legal system.
Early Settlements and Parental Indemnities
There have been many cases I have heard about over the years where parents of children were advised to simply accept a personal injury offer in settlement and “that would be the end of it”.
In some other cases, the advisors of those children went a little further to propose that the parent sign what is called a “parental indemnity” to conclude the personal injury claim for the child on the basis that the parent indemnifies the defendant if, later on, the child tries to bring a second claim having not been adequately compensated for the first claim.
In both of these scenarios, the child who had suffered the injury can potentially be left disadvantaged which is simply not fair on them.
The Law and Claims on Behalf of Children
It may be helpful to set out that the law treats a person below the age of 18 as a “child” a “minor”.
The child who has suffered personal injury can bring proceedings in their name against the defendant but they must do so having been represented by a person above the age of 18. That person, typically a parent or other family member, is referred to as a “litigation friend”.
It is the litigation friend who, on behalf of the child, instructs the solicitor and provides to them instructions. The litigation friend can give instructions to their solicitor to accept an offer of settlement for responsibility and/or value of the claim, but any settlement must still be approved by the court otherwise it is not a lawful or valid settlement. This is governed by Part 21 of the Civil Procedure Rules.
As such, it will be necessary for the child’s solicitor to seek the court’s approval as to any decision on responsibility for the incident as well as the adequacy of the compensation amount.
If the court refuses to approve the settlement then negotiations with the defendant will continue and hopefully a greater sum of money for the child will be agreed, subject again to the court’s approval.
Should the court approve the settlement then it will consider how any compensation is to be handled on behalf of the child. The court has the discretion to order the compensation in full to be paid into court so it can be paid out to the child on their 18th birthday, or for part of the sum to be paid out to the litigation friend for the benefit of the child.
It is, therefore, the position that a personal injury settlement involving a child can only be “valid” where it has been approved by the court.
For a free consultation about making a personal injury claim on behalf of a child call Slater and Gordon 24/7 on freephone 0800 916 9046 or contact us online.