Claiming for personal injury – Child v Adult
When we have an adult client who is claiming for personal injury, they are able to give instructions on all aspects of the claim and this includes settling the claim for a sum of money. This is known as having “legal capacity” as they are over the age of 18. After settlement, the compensation sum is simply paid to the adult client.
In cases involving under 18s, known as minors, they do not have legal capacity so there are two extra steps.
Child Claiming for Personal Injury – Step 1
The first step in the claim for personal injury is the appointment of a litigation friend. The litigation friend has to be over the age of 18, must be competent to act and not have any conflict of interest. The litigation friend can be a parent, a family member, a friend or a guardian. Most of the time, the litigation friend is a parent.
Child Claiming for Personal Injury – Step 2
The second step involves applying to the court to request that the judge approves the sum offered by the defendant. This is an infant approval hearing, sometimes referred to as a child settlement hearing. This acts as an additional safeguard for the child to ensure that the child’s claim is not under-settled and to allow the judge to ensure the child’s compensation award is appropriately managed and invested until they become 18 years of age.
After the parties have come to an agreement, we will ask a barrister to write a legal opinion called an Advice on Quantum. This document is detailed and will take into account the level of injuries by reviewing the medical evidence, previously decided case law and the Judicial College Guidelines. It will conclude by saying whether or not the proposed settlement is reasonable and give a value as to what the correct value should be when valuing the injuries.
The court will list the case for a hearing and the child will attend along with us and the litigation friend.
At the hearing, the judge will ask the child or litigation friend if they have recovered in line with the prognosis (prediction) given in the medical report. The judge will then consider the settlement amount and decide if it is sufficient. The judge will never reduce a previous agreement but, if he thinks it is insufficient, he may refuse to approve it and request that the parties go away to negotiate an increased sum.
“We recently attended a case where the judge felt that the sum was insufficient. We asked the judge if we could adjourn the hearing to negotiate a better settlement with the defendant’s solicitors. 30 minutes later we were able to increase the settlement sum by over 10% which allowed the judge to approve settlement and conclude the case.”
What happens once the court approves settlement?
After approval, it is possible to request an interim payment out of the settlement sum, but the judge will usually only award this if he feels it is for the educational benefit of the child. The compensation only belongs to the child and cannot be used for anything else even if it benefits the child, such as a new bed or football boots.
If the court approves the settlement, it will be invested in the Court Funds Office until the child turns 18. Once the child turns 18, he will be able to contact the Court Funds Office to request that the compensation sum, together with all accrued interest, is paid out to his choice of bank account.