There are thousands of personal injury claims made on behalf of children each year. All compensation settlements relating to children must be approved by the County Court at an Infant Approval Hearing. The process may sound daunting, particularly for a parent, guardian or carer whose child has been injured, but if the correct procedures are followed by their Solicitor, then it should be a straightforward and interesting occasion.
What is needed?
Before any settlement can be concluded between the Solicitor acting for the child and the Defendant’s representative (usually an insurer) the Solicitor must obtain advice from a Barrister about the value of the claim which confirms that the sum offered by the opponent is a realistic and fair sum in respect of the injuries and other losses sustained by the child claimant.
The Solicitor must then gather together all the relevant evidence including medical reports and any evidence of any financial losses that the child or their parent (when assisting them as a result of the injury) has suffered as a result of the accident.
The financial losses are known as Special Damages and can take a variety of forms. The most common are things such as mileage to and from medical appointments, extra time spent caring for the child, the cost of parking at hospitals, paying for pain relief (such as Calpol) or, in some cases, loss of earnings for a carer whose work pattern has been affected whilst they cared for their injured child. The Barrister will review all the evidence prepared by the Solicitor and advise what the injuries (known as General Damages) and Special Damages are realistically worth, normally giving a range of figures from low to high.
What happens next?
Once the Barrister’s written advice is received, the Solicitor should then negotiate with the Defendant’s representative. That process can be relatively short or, in cases where there is more money at stake, can sometimes take many months.
Once the settlement had been negotiated then, provided the settlement achieved is as a good as or better than the valuation given by the Barrister, then the Solicitor should apply to the Court to approve the settlement.
Of paramount importance to the Court is to check that the child has made a full recovery, or has reached as full as a recovery as they will make from the injury before the case is settled. That information will be found in the medical evidence, but the Judge may also wish to speak to the carer and the child (depending on their age) in person at the hearing, to check that their recovery is complete.
The Litigation Friend
At the outset of the claim, the solicitor acting for a child will need to speak to the child’s family or carers to decide which individual is prepared to act as the child’s Litigation Friend. A Litigation Friend is non-legally qualified adult who will conduct the proceedings and instruct a solicitor on the child’s behalf. The Court rules state that anyone under the age of 18 must appoint a Litigation Friend. This is also true in cases where an adult does not have the capacity to understand the nature of litigation and/or manage their own affairs, such as an adult with learning difficulties or a brain injury.
Once a decision has been made about which family member or carer will be the Litigation Friend, their solicitor will make an Application to Court asking for the compensation settlement to be approved. The Solicitor will send to the Court all of the relevant medical evidence (to prove General damages) and other evidence to prove Special damages. The solicitor will also send notification about who the Litigation Friend will be, and the Court will fix a date for the Infant Approval Hearing.
Unless they are very young, (this varies from Court to Court, but as a rough guide 3 years or over) then the child will need to attend the Court hearing with the Litigation Friend. The Solicitor will also attend or may instruct a Barrister to go on their behalf.
The Infant Approval Hearing
The Child Approval Hearing is nothing to be frightened of and, in my experience, the Litigation Friend and the child usually come away from it feeling like it was a positive and worthwhile experience and certainly not something you would do every day!
The hearing usually takes about ten minutes, and takes place in the Judge’s Chambers which are, essentially, the Judge’s office. The Judge will usually be dressed in a suit or other smart clothing. There will not be any wigs or gowns involved. The Solicitor or Barrister will start by introducing the Litigation Friend and the injured child and then ask the Judge to make an order approving the settlement that has been agreed. Sometimes, a representative from the Defendants’ insurance company or a Barrister will attend on their behalf too.
The Judge will usually ask the child and/or their Litigation Friend a few questions so they can check that the injured child has made a full recovery, or the fullest possible recovery has taken place. Assuming the Judge is satisfied then they will make an Order approving the settlement and stating that the child’s compensation should be paid into the Court Funds Office, or a child ISA or trust fund.
The Court Funds Office provides a banking and investment service for the Courts throughout England and Wales. It accounts for the money paid into and out of Court and looks after any investments made with that money. The Court Funds Office invests the money either in a high paying interest account or partly invested in an interest account and part into an Equity Index Tracker Fund on the stock market.
When the child is 18, the invested money (which, by then, will have accrued interest) is paid out to the injured person to spend however they want.
It is possible to ask the Court for a “one-off” immediate payment at the hearing but the Litigation Friend must be prepared to explain to the Judge why that payment is required. It is unlikely that a Court would approve such a payment unless the payment was for the immediate educational or health benefit of the child.
It is also possible with higher value settlements, to ask the Court to Order that a regular monthly or annual payment from the settlement monies to be paid to the child. Again, the regular payments would need to be shown to be required for the child’s educational or physical wellbeing.
At the end of the Infant Approval Hearing the Judge will order the Defendant to pay the compensation into the Court Funds Office or to the child’s solicitors for onward transmission to a trust fund or ISA within 21 days.
Afterwards, it is very important that the child’s family or carers update the Court Funds Office if they move house or if they change contact details. This is because, when the child reaches 18, the Court Funds Office needs to know how to contact them to arrange payment of the invested money and accrued interest.
The Court will send a paper copy of its order to the solicitors who will keep it until the child is 21 and will also send a copy to the Litigation Friend for safekeeping and to pass onto the child on their 18th birthday, at which point they will be able to seek payment of the money to themselves.
Taylor&Emmet have many years’ experience of dealing with personal injury claims for children. For advice please do not hesitate to contact us by calling 0114 218 4000 or email firstname.lastname@example.org