A Handbook For Judges and Court Staff. Edition IV ********************

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1 A Handbook For Judges and Court Staff Edition IV ******************** Awards to Children and Protected Parties and The investment and control of such funds [Revised edition 2014]

2 CONTENTS Introduction to the Fourth Edition Sections that follow: 1. The Role of the Court page 1 2. Protection from the want of skill or experience on the pages 1-2 part of a legal adviser for a child or protected party 3. Settlement, compromise and awards at trial pages Protection for the defendant against future claims when page 3 a child attains his/her majority 5. To ensure proper investment pages To protect the interests of dependants in Fatal page 5 Accidents Act claims 7. Forms of settlement pages 5-8 (A) Common law awards (B) Fatal Accidents Act awards (C) Awards to fatally ill children 8. Procedure for approval of compromise or settlement pages The hearing of the application for approval pages Proceedings following the hearing for approval pages Investment for children by the Court Funds Office pages Protected parties and protected beneficiaries pages Use and misuse of funds pages Investment of awards made by the courts of England and pages Wales in foreign jurisdictions 15. Awards made by foreign courts to children resident page 22 within our jurisdiction 16. Death of child or protected beneficiary pages Investing for children and protected beneficiaries pages A Guide to Court Funds Office practices with regard to children s and protected beneficiaries accounts by Elizabeth Jeary of the Court Funds Office (1) Introduction (2) The form of the investment (3) The course of the investment 18. Useful contact information pages Forms CFO 402 page 29 CFO 320 pages CFO 320PB pages CFO 212 page 36

3 Introduction to the Fourth Edition The material in this Handbook has been drawn essentially from the first three editions, which were written by Robert Turner, the Senior Master and Queen s Remembrancer from 1996 to The Third Edition was published in Robert Turner has acknowledged that amendments now need to be made by reason of the passage of time and changes to the Civil Procedure Rules in many respects. He has kindly authorised me to put in hand such revisions and I in turn have asked Graham Rose to attend to the task; he has unrivalled experience of this topic, having sat as a Queen s Bench Master and Deputy Master for a total of 27 years. I am (and all who refer to this handbook will be) grateful to him for the extensive work he has undertaken in this thorough revision. The results could not have been achieved without Robert Turner s groundwork in the first place. Nor could they have been achieved without the considerable input of Elizabeth Jeary of the Court Funds Office, who had herself contributed to the Third Edition. The Handbook guides the reader along the paths of practice and procedure necessary for the court to approve awards of damages to children and protected parties, and safely and sensibly to manage the funds which are awarded to them as a result. It is particularly devoted to seeking to help the Judiciary and Court Staff, and the Profession, on these vitally important aspects of the court s jurisdiction. Our thanks are due to the Court Staff who have the task of putting the practices into effect and in particular to Alexis Rigg of the Action Department who has supervised Children s Funds for a number of years. Thanks are due also to Michelle Spiteri who has valiantly attended to the typing of the work. In some quarters it is perceived that the judicial management of these funds is paternalistic and that the impersonal hand of bureaucracy is to be preferred, but the universal appreciation of parents and litigation friends for the care and consideration shown by judges in managing their children s monies is sufficient justification for their efforts and for retaining this jurisdiction. H John Leslie Acting Senior Master and Queen s Remembrancer The Royal Courts of Justice July 2014

4 1.The Role of the Court From the earliest times the courts have always been anxious to protect those under a disability. The two obvious classes of such persons are (1) those under the age of 18 (the age of majority) who cannot, with certain exceptions, contract on their own behalf; and (2) those who are deemed to lack capacity within the meaning of the Mental Capacity Act The first of these groups are termed children, and the second are known as protected parties while they are litigants and as protected beneficiaries once the award has been made. This protection is given by requiring that the court should approve settlements or compromises of claims involving children or protected parties and should thereafter control the fund by directions which are to be given by the court. This regime is imposed by the courts in order to:- 1. Ensure that monies awarded to them are appropriate in amount and are properly invested and expended for their benefit. 2. Give defendants a valid discharge from their liabilities and obligations. 3. Protect children and protected parties from any lack of experience or skill on the part of their lawyers. 4. Ensure that the lawyers are paid only the proper amount of their costs and no more. 5. Ensure that all defendants in an award under the Fatal Accidents Act are treated fairly. See para 7.1 of the Practice Direction to Part 21 whereby a settlement in respect of a claim under the Act must be apportioned between the persons of whose behalf the claim has been brought. Litigation by children and protected parties is required to be conducted by a litigation friend on their behalf and proceedings in relation to the control of a fund after the award will always require the involvement of a litigation friend (save where the fund is under the control of the Court of Protection). In the eyes of some, this control is seen as paternalistic, but the experience of the judges who administer these funds is that parents and litigation friends overwhelmingly approve of this control; and indeed frequently request the court to retain control of the fund notwithstanding the wishes of the recipient until the recipient is at least 21 or 25, something which is not in fact permissible in law. Guidance is given regarding the role of the court and the various procedures to be followed by the Practice Direction to Part 21 of the CPR in its most recently revised form, and in the Queen's Bench Guide (2014 edition), in particular at paragraphs to Protection from the want of skill or experience on the part of a legal adviser for a child or protected party Awards to children generally result either from them sustaining some injury for which compensation has been awarded or offered or from the death of a parent upon whom 1

5 they are dependent. In the case of protected parties, their condition may be the result of a tortious act and the award/settlement in the main is designed to provide for their maintenance and treatment for their entire lives or until they recover. To assess the merits of such claims and their potential value is difficult, and often in the past inexperienced solicitors have endeavoured to handle such cases without properly appreciating their worth. The task of the court is to assess the potential liability of the parties and to estimate quantum (unaided initially from hearing the terms of any proposed settlement) and then to determine in the light of its own judgment whether the interests of the child or protected party have been properly served by the proposed compromise: Black v Yates [1992] Q.B.526. In some quarters a practice seems to have developed, in cases where the settlement/ offer is less that 1000 and where it is thought sufficient, in order to avoid unnecessary or disproportionate costs, to seek an indemnity from the parents to be given to the defendants/insurers, of settling without applying to the court. This may appear initially attractive but it abrogates the court s duty to ensure that advantage is not taken of inexperienced claimants solicitors by insurers keen to settle for the least possible sum. The court s experience is just as important in these small cases as in much larger awards and in any event the costs will be paid by the insurers. If the award has been made as the result of a contested trial on the merits and a judicial decision has been made as to quantum, then the judge charged with giving investment directions does not have to concern himself or herself with this aspect. 3. Settlement, compromise and awards at trial (i) Settlement or compromise It is essential that any settlement or compromise of a claim for damages, or any payment of money (e.g. any voluntary interim payment), or any acceptance of money paid into court, be approved by the court if one of the beneficiaries is either a child or a protected party. Solicitors acting in such cases should never be tempted to avoid the inevitable delay and added expense of such approval by attempting to obtain a quick resolution of a claim. The court s approval gives the claimant s solicitor protection against allegations of settling for too little and the risk of a subsequent claim on his indemnity policy. The benefits of the court s approval are as much in the interests of the defendant who obtains a valid discharge as for the benefit of the child/protected party. At common law, due to the want of legal capacity of a child or protected party, any settlement or compromise will not bind him unless it can be proved to be for his benefit. A defendant does not want the uncertainty of waiting till the child attains his/her majority or a protected party ceases to lack capacity and then decides to issue proceedings to test the validity of the settlement. The defendant will therefore be as anxious to obtain a valid discharge by having the settlement approved by the court as will the claimant s solicitors. 2

6 (ii) Where proceedings have not been commenced The parties to the settlement do not need to commence proceedings as such. All that they need to do is to issue a Part 8 claim form seeking the court s approval. See also section 8(i) below. (iii) The interests of the child or protected party are paramount The control of the funds must be with the court to ensure that the monies are wisely and prudently looked after for the child/protected party. Often in the case of a fatal accident claim there will be other dependent children sometimes by more than one marriage. The court must ensure that all dependent children receive a fair share of the award. Furthermore the court is concerned to know the totality of the award (including any sum proposed to be awarded to parties who are sui juris), so that the court can adjudge whether the sums proposed to be apportioned to the children are proper sums: see Jeffrey v Kent County Council [1958] 1 WLR 927; [1958] 3 All E.R. 155 per Paull J; and see McDermott International Inc v Hardy, The Times, 28 December 1995, C.A. (iv) Settlements at trial Often the parties in the course of a trial will agree a settlement. In this event the approval of the trial judge should be sought. If he approves the settlement he will almost always order that any lump sum agreed be paid into court and placed on special account pending the giving of investment directions by the Master or a District Judge. To avoid any delay in complying with such order he should direct that the claimant s solicitor make the application to the Master of District Judge by a specific date; see para 9.3 of the Practice Direction to Part 21. (v) Awards at trial Where there has been a trial on liability and/or quantum the judge will have determined how much the child/protected party should receive. In respect of investment of the award he will, as in the case of investment of a sum determined by an approved settlement as in (iv) above, give directions in accordance with the provisions of para 9.3 of the Practice Direction. 4. Protection for the defendant against future claims when a child attains his/her majority It is important to provide a means by which a defendant may obtain a valid discharge from a child s or protected party s claim. At common law a contract of compromise out of court does not bind such a claimant unless it can be proved to have been for his benefit. No prudent defendant wishes to take the risk of a claimant issuing a claim for further damages on attaining his/her majority. A judgment in proceedings or an order approving a settlement in proceedings binds the claimant and gives the defendant a discharge. 5. To ensure proper investment The court has a duty to make sure that money recovered by or on behalf of a child or protected party is properly looked after and wisely applied. Rule 21.11(1) requires that the money will be dealt with in accordance with directions given by the court 3

7 under this rule and not otherwise. Rule 21.11(2) goes on to provide that directions given under this rule may provide that the money shall be wholly or partly paid into court and invested or otherwise dealt with. (i) The Court Funds Office In the vast majority of cases the fund will be retained and invested by the Court Funds Office. In the past the court itself has specified the form of such investments. Since 3 October 2011 the court s options in such cases are restricted by the Court Funds Rules (S.I 2011 No.1734). The court is required to give general guidance as to the use of the fund, e.g. to produce capital growth only, a mixture of capital growth and income, or maximum income. The actual form of the investment by the Court Funds Office is determined by the Rules whereby (under rule 14) the Accountant General may invest only in (a) a basic account, (b) a special account, or (c) a common investment fund. In practice investment in a common investment fund will be in the Equity Index Tracker Fund (as common investment fund units are now called). Furthermore such investment in the EITF is now permitted only where: (a) in the case of a child, the fund amounts to 10,000 or more and, on the date of approval of the investment policy, the child has 5 years or more until his/her 18 th birthday, or (b) in the case of a person who lacks capacity, the fund amounts to 10,000 or more and a court, deputy or investment manager has reason to believe that the person will require the investment to be held for 5 years or more. There are, under rule 15, exceptions to the above restrictions where investment in securities has been made before 3 October As to the apportionment of investment in individual cases between special account on the one hand and the EITF on the other hand, see section 11, 12 and 17 below. (ii) Alternative directions as to investment In some cases the court may consider an alternative to placing the money with the Court Funds Office, for example on the terms of a fully considered and approved trust deed. But it will wish to be satisfied as to the security of the arrangement, including the appointment of a solicitor among the trustees of the deed. It will require to be satisfied that the costs of administering any such trust are reasonable and proportionate, and that the child has an unfettered right of access to the fund on achieving majority on his 18 th birthday. Furthermore, in any such case the court will probably require reporting by the trustees on a regular basis to the court as to the state of investment under the deed, and will reserve the power of the court to terminate the trust earlier than it would otherwise be terminated on the child s majority. The former practice, which was available to the court in cases of a substantial fund, of directing investment under a Declaration of Trust made by the Official Solicitor and Public Trustee (known under the former Rules as an Order 80, rule 12 trust) is now 4

8 rarely resorted to. Good reason would be required to show that such a direction should now be made. In other cases, usually in the case of a relatively small fund, the court may approve investment on the terms of a guaranteed bond by a building society or bank. Again, any such investment must be payable to the child immediately on achieving majority. The court will require to see the terms of any such bond and to consider fully all the circumstances before approving any such investment. It should be noted that the court has no inherent jurisdiction to postpone beyond the age of majority a child s entitlement to damages recovered and, consequently, no inherent power to approve a trust deed providing for such postponement: Allen v Distillers Company (Biochemicals) Ltd [1974] Q.B.384. Similarly, any money under the control of the court must be paid out to a child (not being also a protected party) on his reaching majority and the order will so provide: re Embleton [1947] KB 142. The court does however have power to approve a compromise of an action arrived at by the parties themselves and which includes a term postponing a child s entitlement, and, where the words used in the settlement of an action are wide enough to authorise such postponement, the court has jurisdiction under the terms of the compromise to postpone entitlement beyond the age of majority in an appropriate case: see Allen s case, above. 6. To protect the interests of dependants in Fatal Accidents Act claims The court must ensure that the interests of all dependants entitled to a possible share in the settlement are properly protected: see McDermott International Inc v Hardy, The Times, 28 December 1995, where the Court of Appeal held that although each dependant did have his or her own individual dependency claim, the amount to which he or she was properly entitled could not be determined in isolation and as far as dependant minors were concerned would not be approved in isolation. 7. Forms of settlement There are essentially three types of settlement, namely:- (A) Common law awards of damages to children or protected parties for personal injuries suffered by them (B) Fatal Accidents Act awards of damages to children or protected parties as dependants of a deceased person (C) Awards to fatally ill children In addition, a child or protected party may be involved in a claim unrelated to any personal injury. (A) Common law awards These flow from an award following the trial of issues or settlement where the child or protected party is the claimant. They can be sub-divided into:- (i) Awards for injuries where there is no element of ongoing disability requiring regular expenditure of the award 5

9 (ii) Awards where there is a need for continuing treatment/care requiring regular expenditure. In respect of (i) the award may usually be invested with the aim of enabling the child on majority to collect a lump sum to be used as he or she thinks fit hopefully in the form of adult training or further education or for other good purpose. Although it may not be intended at the outset to spend any of the money during the minority, there may be circumstances where the child would benefit from expenditure of some of the award. But it should not be forgotten that parents and guardians have a primary responsibility for the welfare and maintenance of their children and must not regard the award of damages as a windfall for the parents relieving them of this duty. An example may be given of the way in which the courts were able to apply this principle, sensibly and for the benefit of the child, in times when interest rates on special account would readily allow it: A boy awarded a sum following an accident when very young from which he has made a full recovery, has a small award of 3,500. This sum was invested in the special account. His family moved from a large Midlands town to a coastal village in Cornwall. In order to get to college at St Austell at the age of 16, a motor scooter was bought, driving lessons paid for and suitable safety equipment bought. Thus he was able to make greater use of the college s facilities instead of wasting hours each day travelling by a local bus to and from his home. At 17 a car was bought for him, insurance cover paid for and he had the necessary driving lessons. In both instances an application was made formally by letter from the father to the Master explaining the situation and the requests were granted for money to be paid out of the fund in court to meet the costs. In this instance about 6,000 was spent during his minority yet such was the growth of the award on special account that he received 5,600 on attaining his majority. Nowadays, with the interest rate on special account standing at 0.5%, the court must be more cautious to see that the award is not unduly depleted. But the principle remains the same. What must be avoided in such cases is the wasteful expenditure of the award on fashionable fancies, expensive holidays or toys sometimes requested with the wishes/benefit of other members of the family in mind. Applications are often made for release of fairly large sums to buy a new house or to adapt an existing one where the exigencies caused by a child s injuries are relied on to justify that course. The first question to be asked is, is it in the child s best interest for the purchase or adaptations to be made?. If it is, then the court may see fit to release the sum on terms that before release a trust deed is prepared (and approved by the court) which reflects the fact that the child has a beneficial interest in the house equivalent to the percentage of the purchase price/cost of adaptations, which has been provided by his fund. 6

10 The use of an award under (ii) can be more difficult. The award may be quite small yet the disability may be long-term. The difficulty which may arise is to decide how much of the interest should be expended each year and how much retained as a hedge against inflation. It should be remembered that investment by the Court Funds Office in the Equity Index Tracker Fund is not permitted unless the fund has 10,000 or more and there are 5 years or more until majority. Larger awards usually involve greater disabilities, and hence in many cases the need to involve assistance from trained carers or other professionals. Here the problem of investment may not be as acute, in that the court may decide that the whole or part of the award should be made by periodical payments under section 2 of the Damages Act 1996; and see section 9(vi) below. Indeed the court is required under rule 41.6 in every case to give an indication to the parties as soon as practicable whether periodical payments or a lump sum is likely to be the more appropriate form for all or part of an award of damages. Under rule 41.7 the court shall have regard to all the circumstances of the case and in particular the form of the award which best meets the claimant s needs, having regard to the factors set out in Practice Direction 41B. Those factors are set out in para 1 of the Practice Direction and include the nature of any financial advice received by the claimant when considering the form of the award. (B) Fatal Accidents Act awards The involvement of a child in such awards arises where he or she is a dependant of the deceased. Usually there is a spouse who is likely to be the main recipient of such an award. However, it has always been the practice of the courts to build into the award an element for the dependent children. The normal rule is that the parent is at all times during minority responsible for the care and maintenance of a child. The existence of the award does not remove this primary responsibility. If the award reflects compensation for the death of the breadwinner, then the bulk of the award must be in the hands of the remaining spouse who will have the task of providing for the children dependants: see R v Criminal Injuries Compensation Board ex p. Barrett, per Latham J, cited at Kemp & Kemp para , which describes the pragmatic approach of the court. The case is reported at [1994] 1 F.L.R.587. However, the courts have always thought it wise to reserve a small proportion of the award for child dependants. This provides modest insurance against a feckless mother/father who fritters away the monies awarded to her/him. It also provides a nest egg which any caring parent may have wished to be available for the child on reaching majority. The requests/demands of the surviving parent to raid the child s award must be resisted. Generally in FAA cases the child s award should not be paid out or diminished during minority other than to pay for a particular expenditure which is reasonably warranted in the circumstances, including circumstances anticipated at the time of the award or at the time of the application. 7

11 (C) Awards to fatally ill children This poses a particularly difficult task for the judge. He/she is faced with a life expectancy figure which might expire before majority is reached. In such a case, the decision must be taken as to how best to spend the money to improve the child s quality of life during the remainder of its short life. Ideally the fund should be exhausted by the time the child dies save for funeral expenses. An example:- An award made in respect of 300 plus children who were injected with contaminated fluids (Factor 8) connected with blood transfusions and thereby became HIV positive, posed such problems in the 1990 s. The life expectancy was given at 5 years at the time of the award. The individual funds were all 20,500. The policy adopted was to use the money so that the infected child and its immediate family were able to enjoy as much of their company together during the child s last few years. In general this worked successfully and the mothers co-operated fully with the court s policy (the fathers, in possibly the majority of cases, could not face the prospect of coping with the trauma and left the family). 8. Procedure for approval of compromise or settlement The Practice Direction to Part 21 of the CPR gives considerable assistance on all aspects of procedure to be adopted in these cases, and this Handbook should be read in conjunction with the Practice Direction. (i) Before proceedings are begun: Where an agreement is reached for the settlement or compromise of a money claim by or on behalf of a child or protected party before proceedings are begun, the application to the court for approval of the agreement should be made by claim form under Part 8. The claim may be made in the High Court or the County Court. It should be noted that under article 4A of the High Court and County Courts Jurisdiction Order 1991 a claim for money in which the County Court has jurisdiction may only be commenced in the High Court if the value of the claim is more than 25,000; (see however para 2.1 of Practice Direction 7A which sets the limit at 100,000). Under article 5 of the Order proceedings which include a claim for damages in respect of personal injuries (including death) may only be commenced in the High Court if the value of the claim is 50,000 or more (see para 2.2 of the Practice Direction). This latter restriction does not apply to claims in respect of clinical negligence. Claims in the High Court may be made in any Division (though usually in the Queen s Bench Division) and may be made in a District Registry. An acknowledgement of service by the Defendant is required and should be returned to the appropriate court office. The claim form should: (a) ask for the approval of the court to the settlement of compromise (b) include the terms of the settlement or compromise or (as is frequently and conveniently done) have attached to it a draft consent order in Form N292 8

12 (c) if the claim is made under the Fatal Accidents Act 1976, include also the particulars mentioned in s.2(4) of the Act, namely the person or persons for whom and on whose behalf the claim is brought, and the nature of the claim in respect of which damages are sought to be recovered. (d) seek the directions of the court for dealing with the money agreed to be paid. Proposed directions are frequently inserted as part of the draft consent order. The particular matters set out in para 5 of Practice Direction 21 must all be observed, including the requirement for approval by the litigation friend of the settlement or compromise; and the provision to the court (except in very clear cases) of an opinion on the merits of the settlement or compromise given by counsel or solicitor acting for the child or protected party. Where in addition to any claim for dependency a claim is made for damages for the estate of the deceased person under the Law Reform (Miscellaneous Provisions) Act 1934 particulars of any settlement or compromise of that claim should also be included in the Part 8 claim form. The application for approval will normally be listed before and heard by a Master or District Judge in proceedings involving a child; or a Master or Designated Civil Judge or his nominee in proceedings involving a protected party. (ii) After proceedings have begun: Where a settlement or compromise of a money claim by or on behalf of a child or protected party is arrived at after proceedings have begun, but before trial, the application for the approval of the court under rule 21.10(1) and for directions to deal with the fund recovered is made by application in the claim. An application notice in form N244 should be issued and served in the court in which the claim is proceeding, though a transfer of the claim and application may be ordered if the court sees fit in the light of the value of the claim or other circumstances. Under para 6.5 of PD21 the application will normally be heard by a Master or District Judge in the case of a child, and by a Master or Designated Civil Judge or his nominee in the case of a protected party. It is not uncommon in cases of very high value or complexity for the Master to order that the question of approval be referred to a High Court Judge. Again, as with settlement before proceedings have begun, the court must, except in very clear cases, be supplied with an opinion on the merits of the settlement or compromise given by counsel or solicitor acting for the child or protected party. The application should consist of the application form itself and a witness statement from the claimant s solicitor setting out the background and the respective merits and issues on liability and quantum, and exhibiting the relevant reports. Much of this material may be gained from counsel s opinion, and, if counsel has given opinions at different stages, it may be advisable to make all such opinions available to enable the court to appreciate how the eventual settlement or compromise has been reached. Where the settlement includes provision for periodical payments the application must include a draft consent order which satisfies the requirements of CPR 41.8 and 41.9: see para 6.3 of the Practice Direction to Part 21. 9

13 (iii) Special provisions in respect of claims under the Fatal Accidents Act If there are several dependants entitled to claim loss of dependency under the Act, the compromise or settlement should not be approved unless the claim is brought on behalf of all of them. Solicitors acting in such a claim must pursue enquiries as to the identity of all dependants. The particulars of claim, or the claim form under Part 8, must set them out with the necessary particulars under PD16 para 5.1. It may occasionally happen (such as where a conflict of interest arises) that the Master is informed that not all dependants are represented in the claim. In that case he will make arrangements to see that the unrepresented dependants are so represented (if necessary with the assistance of the Official Solicitor). An order embodying a settlement where dependants are excluded may be challenged and set aside: see Cooper v Williams [1963] 2 QB 567; [1963] 2All E.R. 121, C.A. Furthermore, by para 7 of PD21 any judgment or settlement in respect of a claim under the Fatal Accidents Act must be apportioned between the persons on whose behalf the claim has been brought; and in so far as any claim is brought on behalf of a dependent child or children any settlement (including any agreement on a sum to be apportioned to a dependent child) must be approved by the court. (iv) Costs The courts have always been anxious to protect the child/protected party on the question of costs by guarding against: (1) cases where the claimant s solicitor may seek to overcharge (2) cases where the claimant s solicitor may be tempted to recommend an unfavourable settlement by agreeing favourable costs with his opponent. (3) the solicitor who, having been disappointed with the amount of costs recovered on assessment from the defendant, seeks to recover the balance from the damages awarded to his client. The normal rule is that there must be a detailed assessment of the claimant s solicitor s costs, and that such solicitor may not recover more either from the claimant or by deductions from the damages award. However, if the solicitor agrees to limit his costs to an amount agreed with the defendant, and waives his right to recover any further costs, detailed assessment may be and often is dispensed with. The Judge at trial, or the Master on hearing an application to approve the settlement, may nevertheless require the solicitor to furnish the court with a breakdown of his costs before making an order to dispense with detailed assessment. If such an order dispensing with detailed assessment is made it will be specifically expressed and built into the order approving the settlement: see Form N292. Solicitors have increasingly, since the implementation of the new rules as to costs under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, at the same time as applying for approval of a settlement for a child or protected party, been seeking to recover their success fees under a conditional fee agreement with the litigation friend out of the fund of the child or protected party which arises in the 10

14 event that the settlement is approved. The court is, as a general rule, required to order a detailed assessment of the costs which are claimed as the success fee: see CPR The costs of the detailed assessment may however be disproportionate in the circumstances, and the view may be taken that it is open to the court, under rule 46.4(3) and PD46 para 2.1(a), to order summary assessment instead. Every effort should be made by claimants solicitors to provide the court with full information as to their costs, including the justification for their success fee in any individual case, to enable the court to direct and carry out a summary assessment as part of the process of approval of the settlement. It should be added that the existing Rules have not been changed since the introduction of the Act of 2012 and therefore do not directly address the issue of success fees. It is understood that this is the subject of attention at the moment by the Rules Committee. (v) Directions on investment A trial judge, on approving a settlement at trial, will wish to give initial directions on investment. Counsel and solicitors and the associate or court clerk should be alert to reminding him to do so. The judge may in some cases order that the litigation friend or a parent of the child to be paid a small sum to defray past or immediately forthcoming expenses, such as a holiday for the child. But the general order will be that the money be placed on special account and that the claimant s solicitor seek an investment hearing before a Master or District Judge and that such hearing be sought by a certain date so that the matter is not overlooked. If a claimant s solicitor neglects to obtain such directions, he risks the child on attaining majority seeking from him the difference between the sum standing in court to the child s benefit and the amount it might have realised if proper investment directions had been given. In such cases the solicitor may be invited to make good the lost interest/growth of the fund from his own pocket to avoid possible litigation against him by the child on majority and he will invariably do so. (vi) Interim payments Where the parties have agreed that an interim payment should be made to a child or protected party, often because an immediate payment is required, an application should issue for a private room appointment at which the Master or District Judge, Designated Civil Judge or his nominee as may be appropriate can consider for approval both the interim payment and the release of the money. He will want to know the purpose of the payment, and the proportion of the probable final settlement or award which the interim payment represents, so as to satisfy himself that the longterm interests of the child are not being prejudiced. He will moreover be concerned to see (1) that any interim payment ordered does not exceed a reasonable proportion of the capitalised lump sum likely to be awarded at trial in the light of the fact that a periodical payments order might be made at trial under s.2 of the Damages Act 1996 and CPR 41; and (2) that the trial judge s freedom to allocate the damages between a lump sum award and a periodical payments order is not fettered by the making of an interim payment order: see Eeles v Cobham Hire Services Ltd [2009] EWCA Civ

15 It not infrequently happens that in large cases the defendant s solicitors may make a series of interim payments by agreement with the claimant s solicitors and that approval of the court is not sought to each such payment. The claimant s solicitors should as soon as possible inform the court of the circumstances and seek to regularise the position, albeit retrospectively if necessary, by applying for approval of any payment not hitherto approved. In cases involving protected parties it may in addition in some cases be appropriate for the court to seek the views of the Court of Protection where application is made for approval of a substantial interim payment. For example, where the security which has been given by a deputy appointed by the Court of Protection to manage the affairs of the protected party is low by comparison with the proposed payment the Master or Judge may wish to communicate with the Senior Judge of the Court of Protection to obtain his view on the level of security. (vii) Ex gratia payments The practice described in (vi) above as to interim payments applies equally to ex gratia payments made in the course of the proceedings. (viii) Powers of attorney: The fact that a litigation friend holds a registered enduring power of attorney or a lasting power of attorney in respect of the claimant s affairs does not discharge him from his duty to apply to the court for approval of any interim payment or the compromise or settlement of the claim. If the payment is approved, any directions by the court under CPR as to the control of the money might in an appropriate case, and particularly where a substantial sum of damages is involved, include a direction that he apply to the Court of Protection to be appointed as a deputy of that court under s.16(2) of the Mental Capacity Act (ix) Child claimant attaining full age during currency of the claim: When a child comes of age after the issue of a claim and before compromise or judgment, he may adopt the claim and file in the court a notice of the fact that he has attained the age of 18 years and has adopted the claim. When a notice is so filed the procedure for approval has no further application. It would no longer be appropriate for the litigation friend to apply for approval of a settlement even if the child does not adopt the claim unless the child, having attained majority, does not have capacity under the Mental Capacity Act 2005 to conduct the litigation. 9. The hearing of the application for approval (i) In the Queen s Bench Division applications are made to a Master, and an appointment is taken before him in his private room. Appointments in Admiralty claims are heard by the Admiralty Registrar (being a Master of the Queen s Bench Division). An appointment should not be taken in the Bear Garden list because, whilst applications are normally heard in public, the Master may be required to decide either that the application is to be heard in private under CPR 39.2(3)(d), or that an anonymity order be made in respect of the hearing under rule 39.2(4), or that an order 12

16 be made under s.39 of the Children and Young Persons Act Similar considerations arise in respect of a hearing for approval by a District Judge in the County Court. (ii) In the County Court the procedure at the hearing for approval (usually before a District Judge) is essentially similar to that in the Queen s Bench Division, and subparagraphs (iii) to (ix) below should be followed. Whilst the hearing may be listed at any trial centre at which the County Court sits, particular attention will be paid to the residence of the parties so that a location convenient to them may be selected. (iii) At the hearing, whether before a Master or a District Judge, solicitors or counsel for the parties attend. The solicitor for the claimant should have available, in addition to the Part 8 claim form (if the application is made before proceedings have been begun) or the application notice (if proceedings have been begun), all the documents required by paragraphs 5 and 6 of the Practice Direction to Part 21. They should use those paragraphs as a check-list to see that the necessary documents are provided. They should have a bundle of pleadings (if any) so as to direct the Master s or District Judge s attention to the issues in the case. They should have a copy of the child s birth certificate, the evidence relating to liability if this is in dispute, the medical reports, and any evidence as to special damages. The opinion as to the merits of the settlement or compromise required by paras 5 and 6 of the PD should be available separately from any bundle to be provided to the court. In addition, at the hearing for approval there must be provided Form CFO 320, which is the initial application for investment in respect of the fund in court (assuming the settlement is approved), and any evidence or information which the litigation friend wishes the court to consider in relation to investment: see para 9 of PD21. (iv) The first question to be considered is that of liability. The Master should be told whether the defendant admits or does not dispute liability and, if he does dispute liability or asserts contributory negligence, whether and to what extent such liability can be established or the plea of contributory negligence defeated. For this purpose, in accident cases the circumstances of the accident should be described. The Master should be told the age (and occupation) of the child, the date and place of the accident, what evidence can be adduced and what witnesses can be called on behalf of the claimant and the defendant. If there are any police reports, or police notes of evidence, or any witness statements made in criminal proceedings or at an inquest or otherwise they should be produced or referred to. If there has been any prosecution, he should be told against whom and with what results. If counsel or solicitor has advised on liability his opinion should be put before the Master. In all, the Master should be put in possession of all the available material in the case, so as to enable him to form his own opinion as to the claimant s chances of success in the claim, as to the probable extent of such success and as to the degree or percentage of any contributory negligence on the part of the claimant or the deceased. (v) The second question to be considered is that of the quantum of damages. For this purpose, in accident cases there should be placed before the Master the medical reports of both sides describing the nature and extent of the child s injuries and their probable effect (taking into account the prognosis offered) on general health, education, enjoyment of amenities and earning power of the child. The medical reports should be brought up to date so far as necessary. A list of the items making up 13

17 the claim (if any) for special damages should also be produced. In claims under the Fatal Accidents Act, it is essential to inform the Master of the age, occupation and earnings of the deceased, his prospects of promotion if relevant, the ages (with dates of birth) of the widow and each of the dependent children, and the extent to which the widow and dependent children were each dependent upon the deceased for their financial support. All facts which go to show what is the pecuniary loss should be put before the court. (vi) Periodical payments. Where in any personal injury case a claim for damages for future pecuniary loss is settled, whether before or after the commencement of proceedings, the court must be satisfied that the parties have considered whether the damages should wholly or partly take the form of periodical payments: see section 2 of the Damages Act 1996 and paras 5.4 and 6.2 of PD21. Thus in every approval hearing involving settlement of such a claim the Master or District Judge will be concerned to know the position. He will not approve a settlement unless satisfied that the parties have considered the matter. And, in considering his indication as to whether periodical payments or a lump sum is likely to be the more appropriate form for all of part of an award of damages he should have regard to all the circumstances of the case and in particular which form of award best meets the claimant s needs, having regard to the factors set out in PD41B see rule These factors include the scale of the annual payments taking into account any deduction for contributory negligence, and the form of the award preferred by the claimant including the reasons for this preference. In some cases involving contributory negligence the claimant may state a preference for a lump sum award. Where the settlement includes provision for periodical payment, the claim form under Part 8 or the application notice in the proceedings must set out the terms of the settlement or compromise or have attached to it a draft consent order, which in either case must satisfy the requirement of rules 41.8 and Careful drafting is called for and practitioners must follow the dictates of these two rules. Rule 41.9 in particular requires a form a settlement under which continuity of the periodical payments is secured, and the Master or District Judge will be concerned to see that the rule is complied with. (vii) In considering whether to approve a settlement the question before the court is whether the settlement itself is a reasonable one and is for the benefit of the child or protected party having regard to all the circumstances of the case, including the risks of litigation, the desire of the parties to settle and the disinclination of the claimant to go to trial. Counsel s or solicitors opinion on the reasonableness or otherwise of the settlement is placed before the court, but the Master or District Judge must form his own judgment whether to sanction the settlement or not in all the circumstances. It will often be necessary to consider whether the amount offered adequately takes account of the interest to which the claimant might have been entitled if the matter had gone to trial and judgment been awarded. (viii) Though the Master or District Judge does not as a rule formally require the attendance of the claimant or the litigation friend, such attendance should be encouraged. In cases where the child has sustained facial or cosmetic injuries good quality photographs should be available but nonetheless the Master or District Judge may yet wish to see the claimant and his or her parent/litigation friend before approving the settlement. Those acting for the claimant should always take care to see that the psychological effects (if any) of the injuries to a child and any other 14

18 consequential effects are dealt with in the medical evidence so that the court can form a full picture of the damage sustained before approving a settlement. (ix) If the Master or District Judge does not feel entirely satisfied with the proposed settlement, he may (and often does) adjourn the application so as to give the parties a further opportunity to negotiate and possibly agree upon an increased sum by way of settlement. A fresh appointment is made before the court for the adjourned hearing. 10. Proceedings following the hearing for approval (i) Order if the settlement or compromise is approved: If the settlement is approved, the order directs by and to whom and in what amounts the money is to be paid and how the money is to be applied or otherwise dealt with. Following a hearing in the Queen s Bench Division, the order as minuted by the Master must be taken to the Masters Support Unit (Room E07) within seven days of the time allowed by the order, for the order to be sealed and for the CFO 212 to be compiled from the CFO 320. As laid down by para 9 of PD 21, the CFO 320 is the initial application for investment of damages for completion by the judge hearing the application; and the CFO212 is the request for investment decision compiled by the court from CFO 320. The claimant s solicitors must provide the Form CFO 320 to the court at the hearing and must complete that part of the form which requires completion by them. The CFO 212 is then sent by the court to the Court Funds Office who will make the appropriate investment. A copy of the CFO 320 is retained by the Action Department. If the claimant s solicitor fails to draw up the order and serve it within the time allowed, and there is a loss of interest to the child s fund, the solicitor may be ordered to make good the interest so lost from his own account. (ii) Directions if the settlement or compromise is not approved: Where the court refuses to give its approval, it must give directions as to what is next to be done. If proceedings have already begun it will give whatever directions are appropriate to bring the claim to trial. If the application for approval was made by a Part 8 claim form it is likely that the court will order under CPR 8.1(3) that the claim do continue as if the Part 8 procedure had not been used and then give directions as it considers appropriate. (iii) Appeal: If the settlement is not approved by the Master or District Judge, either party may seek permission to appeal to a Judge (in the High Court) or a Circuit Judge (in the County Court), as the case may be. (iv) Settlement at the trial: If a settlement is reached at or during the trial, an application is made to the trial judge to sanction its proposed terms. He will, if he approves the settlement, either give directions as to how the money is to dealt with; or will direct that the money be placed 15

19 forthwith on special account and that the matter of investment be referred to a Master for further directions. (v) Settlement on appeal to the Court of Appeal: Where an appeal has been entered, the Court of Appeal has seisin of the matter and consequently, if a settlement is thereafter arrived at between the parties in respect of the amount of damages to be paid to a child, such settlement must be approved by the Court of Appeal (Walsh v George Kemp Ltd [1938] WN120, CA). (vi) Settlement on appeal to the Supreme Court: Where a compromise or settlement is arranged after the Court of Appeal has disposed of a case, it no longer has seisin of the matter and cannot be asked for its approval. If a petition to appeal has been lodged, the proper course is for the Supreme Court to be asked for its approval of the agreed terms (Flack v Withers (No. 2) [1961] 1 WLR 1284; [1961] 3AllE.R. 388, HL; Leather v Kirby [1965] 1 WLR 1489; [1965] 3 AllE.R. 927 HL; but if no petition is lodged, it would seem that the terms of settlement cannot be submitted to the Court of Appeal for its approval and in such event the best course would be to submit the settlement to a Master or District Judge as the court of first instance for his/her approval under the inherent jurisdiction of the court. 11. Investment for children by the Court Funds Office The reader is invited to read this section together with section 17 below. (1) The investment of a child s fund must always build in a hedge and, depending on the needs of the child, provide for: (i) capital growth (ii) capital growth and available income (iii) income alone, or (iv) investment in special account The judge has only to assess the future needs of the child and give a direction in this respect to the Court Funds Office who will then invest the fund in accordance with the following investment framework:- Capital growth only Capital growth and income Maximum income Less than 5 years to majority 5 to 6.5 years to majority 6.5 to 8 years to majority Special 30% 50% 70% Special 30% 30% 50% 8 years or more to majority Special Special Special Special 16

20 Special account Special Special Special Special The percentage figures above represent investment in the Equity Index Tracker Fund (EITF) which is itself made up of three elements of investment, namely the FTSE All Share Index, the FTSE World ex-uk Index, and the Global Emerging Markets Index. Such investments from the EITF are made by Legal and General under a common investment scheme authorised by the Lord Chancellor. The Accountant General, who is in charge of the Court Funds Office, has the right to make such investments in the EITF on behalf of children and protected beneficiaries. (2) It should be noted that in certain cases, e.g. where the child is a Muslim and may not benefit from the earning of interest, or the parents request a particular form of investment. e.g. investment in a High Street bank account, the Judge or Master may see fit under CPR to direct such investment. But in all cases the investment must be made so as to entitle the child (to whom the money belongs) to call for it to be paid out to him on majority. Bonds offered by such banks are usually available in express terms to provide for such entitlement. (3) The following matters should especially be taken into account by practitioners when completing form CFO 320, and Master and Judges should ensure that they are observed: 1. A separate form should be used for each child 2. A signature by the litigation friend should be contained in the form - this is a useful check for the authenticity of any subsequent request for a payment out of the fund 3. The litigation friend s and solicitors addresses must be inserted the latter is important in cases where one needs to trace a parent who has moved house and failed to inform the court 4. The form must set out the full names of the child as they appear on the birth certificate. A copy of the birth certificate will be required on majority before payment out is authorised 5. The amount actually in court or to be paid into court must be recorded 6. Majority directions must always be given to pay out or transfer the fund on majority, unless (which should be noted on the form) there is a particular reason why the Judge or Master would wish to have the matter brought back before him to decide how the fund should be dealt with at majority 7. Because there is a risk that the court file may have been destroyed before a child reaches his/her majority and the family may have changed address, it is useful to record information, such as the child s national insurance or national health number, so as to aid the Court Fund Office in tracing the child at majority. 12. Protected parties and protected beneficiaries 17

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