Understand Infant Approval Hearing And/or Parental Indemnity In Relation To A Personal Injury Claim By A Litigation Friend For A Child

In instances where a child, under the age of 18, sustains injuries in an accident, they are entitled to pursue a claim facilitated by a Litigation Friend.

This representative can be a parent, guardian, or another responsible adult, provided there exists no conflict of interest with the child.

Alternatively, should conflicts arise, a Solicitor may be appointed to serve as the Litigation Friend.

Upon reaching a settlement or agreeing on damages between the Defendant (opposing party) and the Litigation Friend acting on behalf of the child, a crucial process ensues.

The settlement must then undergo scrutiny and approval by a Judge. This evaluation involves the Judge considering the settlement amount vis-à-vis the specifics of the case and the professional advice on quantum. If the Judge deems the settlement insufficient, they reserve the right to direct legal representatives to negotiate for a higher amount in alignment with the Quantum Advice provided by a Barrister.

Approved settlement amounts are then earmarked for the child`s benefit but remain within the Court`s Funds Office until the child reaches the age of majority (18 years).

During this period, the Litigation Friend has the prerogative to petition the Judge, seeking disbursement in installments, periodically, or as a fixed amount.

However, certain situations arise where the Defendant or their Insurance Company seeks finalization through a Parental Indemnity. Similarly, some parents or guardians prefer this arrangement for damages to be paid upon settlement.

The Parental Indemnity constitutes an agreement signed by both parties instead of receiving Court approval. Despite its apparent convenience in managing child claims, this method is discouraged for both legal representatives and Litigation Friends. Opting for a Parental Indemnity poses a risk whereby the child, upon reaching majority, might challenge the settlement on grounds of perceived negligence. The Civil Procedure Rules (CPR) Rule 21 addresses this concern, highlighting the potential implications of such an approach.

In essence, while the Parental Indemnity may seem expedient, it is neither advisable nor prudent for the handling solicitors nor the Litigation Friend due to the potential legal ramifications outlined within the CPR Rule 21.

CPR 21.10

(1) Where a claim is made –

(a) by or on behalf of a child or protected party; or

(b) against a child or protected party,

no settlement, compromise or payment (including any voluntary interim payment) and no acceptance of money paid into court shall be valid, so far as it relates to the claim by, on behalf of or against the child or protected party, without the approval of the court.

(2) Where –

(a) before proceedings in which a claim is made by or on behalf of, or against, a child or protected party (whether alone or with any other person) are begun, an agreement is reached for a settlement or compromise or a payment (including any voluntary interim payment) which relates to the claim; and

(b) the sole purpose of proceedings is to obtain the approval of the court to a settlement or compromise or a payment (including any voluntary interim payment) which relates to the claim,

the claim must –

(i) be made using the procedure set out in Part 8 (alternative procedure for claims); and

(ii) include a request to the court for approval of the settlement or compromise or payment (including any voluntary interim payment).