19th July 21 | Latest News - Personal Injury Law

Why does my child’s personal injury claim case have to go to court?

At Hopkins, we want you to get the best settlement figure possible for your child. If your child has sadly been involved in an accident or incident because of the negligence of a Third Party we will do everything that we can to help. As a child is a ‘protected party’ there is a requirement for any settlement agreed between the parties to be approved in a Court by a Judge.

Why does my child’s case have to go to court?

There are many personal injuries claims for children every year and because they are under the age of 18 the law requires that any settlement must be approved by a judge at the County court. An infant approval hearing is required once a settlement has been agreed between parties for a child’s claim. It is a short court hearing usually held in Judges’ Chambers where a Judge approves the amount of compensation agreed to be paid to a child under the age of 18. The hearing should be straight forward and should not take much time, usually the time allowed for the hearing is around 20 minutes.

For child claims, a court will always want to protect a child’s interest and make sure they are properly looked after. Reasons given for having the Courts approval is:

to protect the child from incompetent lawyers
to give a defendant a valid discharge from the claim
to ensure a child’s award is properly protected

Once approved the money is usually paid into the Court Trust Fund for the child to access when he/she is 18.

Why is a barristers advice needed on the settlement figure for my child’s claim?

Before any settlement can be legally concluded between the Solicitor acting for the child and the Defendant representative. The Solicitor must obtain advice from a barrister about the value of the claim, which confirms that the sum offered by the Defendant representative is a realistic and fair sum in respect of the injuries and other losses sustained by the child. This is called ‘advice on quantum’. The barrister will look at the child’s medical evidence (i.e., the medical reports) in order to value the child’s injury, and also the child’s ‘other losses’ (also called special damages) such as travel expenses, medical expenses etc.

The advice is guidance to the judge at the Infant approval hearing. It gives the judge guidance on a reasonable settlement figure for the child and whether to approve the figure agreed by the parties.

Once the barrister’s advice on quantum is obtained and a settlement figure has been agreed between the parties, and it is within or above the valuation from the barrister then the injured child’s Solicitor should apply to the local County Court for an order to approve the settlement.

Why does my child need a ‘Litigation Friend’?

A litigation friend is a non-legally qualified adult who will conduct the proceedings and instruct a Solicitor on the child’s behalf. The court rules states that anyone under the age of 18 must appoint a litigation friend.

The process for appointing a Litigation Friend can be performed with or without a court order, with the essential ingredients being that the Litigation Friend:

can fairly and competently conduct proceedings
has no current or likely future conflict with the child
gives an undertaking as to costs

What documents are needed for the infant approval hearing?

Your Solicitor will send the following documents to the court in preparation for the infant approval hearing:

A certificate of Suitability regarding the litigation friend
A draft consent order
Evidence about the age of the child (usually in the form of a copy of the birth certificate)
The signed approval to the terms of the settlement from the litigation friend
Witness statement of the litigation friend
Statement of the Claimant Solicitor
A copy of the medical evidence (report(s))
Schedule of Loss
A copy of the barrister’s opinion
Form CFO320 and CFO212 (Regarding investing in the Court’s Fund’s office)

What happens at the hearing?

As a general rule, the litigation friend and the child should be in attendance with a copy of the birth certificate and the original (or Deed Poll is there has bene a change of name). Of paramount importance to the court is to check that the child has made a full recovery or has achieved as full as a recovery as they will ever 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 litigation friend and the child in person at the hearing, to confirm their recovery is complete.

The hearing usually takes around 10- 20 minutes and normally takes place in Judge’s chambers which is essentially the Judge’s office. During the last year or so, infant approval hearings have been taking place over the phone or via video link because of the effects of COVID-19. The Solicitor or barrister for the child will start by introducing the child and litigation friend and then ask the judge to make an order approving the settlement that has been agreed. It is rare for a Solicitor or barrister representing the Defendant to attend.

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. Assuming the judge is satisfied with the award, they will make an order approving the settlement and stating that the child’s compensation should be paid into the Court Funds Office, or separate ISA or trust fund which has already been opened for the child by the litigation friend (as it may be that they have a higher interest rate).

When the child reaches 18 years of age, they will be able to seek payment of the money from the Court Fund Office to themselves.

The procedure of approving infant settlements has been in existence for a very long time and is recognised as an important practice for protecting the most vulnerable. At Hopkins Solicitors we have lots of experience when dealing with infant claims.