Author: Montclare Campbell, Barrister 21 February 2012
Fact Sheet: What to include in a brief to Counsel for infant settlement approval hearings and issues to look out for.
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Thank you for registering to receive this fact sheet. I will firstly address the purpose of infant settlement approval hearings, then go on to set out what should be included and finish with issues to look out for.
As you may be aware the purpose of these hearings is for the Court to approve the terms of settlement for minors who have suffered personal injury and also covers (this fact sheet deals mainly with personal injury) other financial settlements entered into in relation to other causes of action (tortuous / contractual). Part 21 and accompanying Practice Direction 21 are the relevant provisions and guidance from the civil procedure rules. Applications are heard by a Master or District Judge. 5.1 of the Practice Direction sets out what needs to be included in general terms “Where a claim by or on behalf of a child or protected party has been dealt with by agreement before the issue of proceedings and only the approval of the court to the agreement is sought, the claim must, in addition to containing the details of the claim and satisfying the requirements of rule 21.10(2), include the following
– (1) subject to paragraph 5.3, the terms of the settlement or compromise or have attached to it a draft consent order in Practice Form N292;
(2) details of whether and to what extent the defendant admits liability;
(3) the age and occupation (if any) of the child or protected party;
(4) the litigation friend’s approval of the proposed settlement or compromise,
(5) a copy of any financial advice relating to the proposed settlement; and
(6) in a personal injury case arising from an accident
– (a) details of the circumstances of the accident,
(b) any medical reports,
(c) where appropriate, a schedule of any past and future expenses and losses claimed and any other relevant information relating to the personal injury as set out in Practice Direction 16 (statements of case), and (d) where considerations of liability are raised – (i) any evidence or reports in any criminal proceedings or in an inquest, and (ii) details of any prosecution brought.”
-What to include
Advice on Quantum
It is crucially important to include an advice on quantum from Counsel, which will give the court advice on whether the amount agreed is reasonable or not and in any event make recommendations as to an amount which would be reasonable taking into account the nature of and surrounding circumstances of the injury, minor’s medical report, case law and the Judicial Studies Board Guidelines. Note that this is not mandatory in very clear cases, but this would be rare. Note that if the instructions given to provide the advice are not sufficiently set out in the advice, a copy of the instructions must be supplied to the court.
Generally Counsel will give details of the instructions given in the opening paragraphs of the advice, so generally there will be no need to supply instructions. Instructions to Counsel requesting an advice on quantum, should also provide details of any special damages, namely expenditure arising from the injury, for example physiotherapy costs, travel to and from medical appointments, cost of medicine, costs of cancelled gym or sport club membership due to loss of amenity and so forth. If special damages have been incurred the advice on quantum should include them (or at the very least the brief to attend court) as the judge will be approving both general and special damages. Medical Report Another crucial document is the medical report. Do ensure that it contains the declaration dealing with the requirements of Part 35 and Practice Direction 35, the Protocol for the instruction of experts to give evidence in civil claims and the Practice Direction on PreAction conduct.
Most importantly the report should identify what the injury is, its effect on the minor long term and a prognosis period. Court Documents and Relevant Correspondence In most cases it will be unnecessary to provide Counsel with papers from your correspondence file, unless it relates to the settlement agreed in respect of damages and costs. Counsel should indicate if any particular correspondence is required after considering the brief. As regards Court documents such as notice of hearings, court orders and the statements of case, these should generally be provided so that Counsel is aware of the proceedings to date and can draw documents to the attention of the court if required. Draft order – N292 As part of the application for an infant settlement approval hearing instructing solicitors may have filed a consent order signed by both parties’ solicitors. Where this has not occurred, and in any event a draft order on Form N292 would need to be filed with the court either by instructing solicitors or it can be included in the brief to Counsel and Counsel can complete the order and hand it to the court.
The terms of the order would usually be as follows (it may vary depending on the circumstances):
“An application was made on……… by counsel for the Claimant Master / District Judge approved the following terms of settlement and made them an Order of the Court BY CONSENT IT IS ORDERED that- 1. The claimant may accept the sum of £……….. in satisfaction of the claim 2. The defendant pay the sum of £………………. into the Courts Funds Office on or before ………… (usually 14 – 21 days) to be invested and accumulated in the Special Investment Account pending further order. 3. The fund to be paid to the child on majority as he / she may request 4. The defendant pay the claimant’s costs (either) Agreed at £……….. on or before ……… (14 – 21 days) or be assessed with permission to request assessment be dispensed with [and the claimant’s solicitor waiving any claim to further costs] 5. Upon payment of the sum(s) and costs referred to above, the defendant be discharged from further liability in respect of all claims made by the claimant against him in these proceedings. 6. All further proceedings be stayed except that either party has permission to apply to the court for the purpose of carrying this order into effect. ” Future pecuniary losses Where in any personal injury case a claim for damages for future pecuniary loss is settled. The court must be satisfied that the parties have considered whether the damages should wholly or partly take the form of periodical payments.
Where the settlement includes provision for periodical payments, the claim must
–(1) set out the terms of the settlement or compromise; or
(2) have attached to it a draft consent order,which must satisfy the requirements of rules 41.8 and 41.9 as appropriate (A discussion of these provisions is outside the scope of this fact sheet). Instructions on how the damages agreed is to be allocated Rule 21.11 deals with this point. Instructing solicitors should include instructions on whether the minor’s litigation friend would like to use some of the money awarded for the benefit of the minor immediately. The general directions is for the money to be paid into the court funds office. Under Rule 21.11 the court may direct that certain sums be paid direct to the child or protected beneficiary, his litigation friend or his legal representative for the immediate benefit of the child or protected beneficiary or for expenses incurred on his behalf.
However in my experience the courts are reluctant to do so to prevent the funds being used for inappropriate purposes. Judges will generally try to keep a majority of the sum of money, in the court funds office so that the minor can benefit on majority, however they are inclined to release some funds if the litigation friend can provide: -written quotes for the sums requested; and -details of why the sum is required, which takes it outside the scope expense wise of what parents would usually be required to provide their children with. Computers and other items in relation to education which are expensive are generally looked upon favourably. The court sometimes takes the view that the interest rate in the court funds office is lower than that which would be available commercially on the high street. In these circumstances it may direct that the funds be transferred to an existing fixed form of investment such as a bond or other high interest account which must not be accessed until the minor reaches 18.
Publicly funded legal services
Where a child or protected beneficiary is in receipt of publicly funded legal services the fund will be subject to a first charge under section 10 of the Access to Justice Act 1992 (statutory charge) and an order for the investment of money on the child’s or protected beneficiary’s behalf must contain a direction to that effect. CFO Form 320 & ensuring litigation friend reads information sheet CFO 403 (Guidance on Form 320) A CFO Form 320 should either be filed with the court and a copy enclosed in the brief for the litigation friend to complete at court. Before signing the CFO Form 320 the litigation friend must read information sheet CFO 403, which is guidance on form 320 and provides information on the nature of the special account and The Equity Index Tracker Fund. This is the form which applies to the court fund office for investment of the damages and gives information as to whether periodical payments, and immediate payment are required and the reason for the request. It is helpful if all parts of the form are filled out in advance and in my experience most judges are happy for section 1 of page 3 of the form to be filled out headed “To be completed by judge Section 1 – May be completed by court staff”. However section 2 onwards of page 3 of form CFO 320 should only be completed by the judge. Note that the practice directions allows the court to pay very small damages direct to the litigation friend to be put into a building society account (or similar for the minor’s use). Birth Certificate or Certified Copy Form CFO 320 requires the litigation friend bring the minor’s original birth certificate or a certified copy. In the brief to Counsel it is helpful if instructing solicitors indicate that the litigation friend was asked to do this and when (preferably within the last 7 days, although I appreciate that most times these instructions would have been sent out in the letter notifying the litigation friend of the hearing). If this document is not provided the court is unable to approve the settlement and Counsel would need to attend on a further occasion incurring further fees.
Letter notifying the litigation friend of the hearing
It is helpful if Counsel has a copy of this and I will set out some suggested wording below. In the section below on issues to look out for I will illustrate why this important. Broadly this is so Counsel can refer the litigation friend to this letter for example if the child has not fully recovered and the letter notifying of the hearing indicated that this was required before approval could take place. Suggested wording (you may need to amend this depending on the circumstances)
“Dear Mr/s X The final hearing in this matter will be held at …………… County Court on …………. at ………… am/pm. Please attend 30 minutes before the start of the hearing and meet with Barrister ……….. who will be representing …… Please bring …………..’s birth certificate or a certified copy of it. If you do not bring it the hearing will not be able to go ahead and you will be personally liable for the costs of the barrister fee for any further hearing. The Barrister will give you a form for you to fill out which applies to the court for the settlement amount to be invested. You can request that the court release some of the fund for example for educational purposes or if there is a specific purchase required like a computer, where the expense is outside what you normally be required to provide as ………’s guardian. This is not guaranteed and will be at the judge’s discretion. To aid this application you should get written quotes for the items requested and it is helpful if you put together a letter setting out the items required and why they are needed. Please give us this information at least 7 days prior to the hearing so that we can send it to the court and the barrister who will be representing you. Please note that you must attend the hearing as a litigation friend and you should not send a family member or anyone else to act as litigation friend as you have agreed to act in this capacity and the court will only approve the settlement amount if you are present and provide evidence on behalf of ……….. There may be other legal consequences if you do not attend levied by the court. The purpose of the hearing is for the court to approve the settlement amount of ………. which you agreed to on ………. having seen the Barrister’s ……… advice and reviewing ………. ‘s medical report. You signed the confirmation of recovery on the basis that ………… has fully recovered from his/her injury. Some time has elapsed since you signed that confirmation of recovery. If ………….. is still suffering from any symptoms no matter how minor, you should inform us within 2 days of receipt of this letter as we may need to postpone the hearing date until we can confirm that …………. has fully recovered. We have incurred the cost of £………. in instructing the Barrister for the hearing and we will need to recover this amount from you and costs for future hearings, should the hearing be postponed due to your failure to provide us with the information above. It is therefore very important you confirm to us at least 2 days prior to the hearing whether or not ……… is still suffering from his injury. Please note that as ………….. litigation friend you have agreed to represent his/her interests, you are obligated to find out information from …………. in relation to his/her current condition. If ……….’s condition is worsened or is continuing he may be entitled to further compensation, if a further medical report reveals that it results from the injury suffered in relation to these proceedings. Most importantly the court is unlikely to approve the settlement amount unless …………. is fully recovered. We await hearing from you if …………’s condition has worsened or is continuing and for details supporting an application to release some of the settlement amount, if required. Otherwise the barrister will see you on the hearing date. Yours sincerely”
Position on costs
It is important for instructing solicitors to confirm the position regarding costs. If costs have not been agreed the brief should state this. If costs have been agreed, confirm the amount in the brief and also itemise the costs agreed, which will usually be set out in the correspondence between the solicitors, so these letters should be provided. If costs are not agreed the usual direction is for costs to be summarily assessed if not agreed.
-Issues to look out for
The court will not be able to approve the settlement where: a. The litigation friend does not appear and the court does not allow a new Certificate of Suitability to be filed (appointing another litigation friend) where another adult appears on behalf of the minor. The court will sometimes allow a new litigation friend to appointed however this may not occur where the person who appears is unsuitable. -In practical terms, infant settlement approval hearings are generally listed for a nominal period of time varying from 10 to at most 20 minutes. If a court has a long list of hearings allocated and if the minor and accompanying adult (not the litigation friend) arrive late, the court may not be able to reschedule a hearing later that day particularly for afternoon hearings, to address suitability. b. The child has not fully recovered. Even where a minor may have recovered at the time of the litigation friend signing a statement to that effect, it is not unknown for a minor to develop further symptoms in the period between the hearing and signing. In those circumstances the litigation friend should be aware of the importance of letting instructing solicitors know if any new symptoms have developed or ongoning. Doing so in good time will enable instructing solicitors to request postponement of the hearing until further medical reports are ordered into the symptoms.
Judges will not generally approve settlements where the child and / or litigation friend report unresolved conditions at the hearing. -Remember, the judge will generally ask both the litigation friend and minor whether full recovery has taken place. Any mention of ongoing conditions no matter how small, result in judge taking the cautious option of requesting a further medical report. -In circumstances where a minor is not fully recovered within the prognosis period at the date of the hearing, judges are unlikely to approve the settlement as doing so could result in the minor being under-compensated. c. The prognosis period given in the medical report has not expired. d. There is no advice on quantum. e. There is no medical report. f. A birth certificate or certified copy of it has not been provided. g. A person other than the litigation friend attends h. A draft order has not been completed I. Form CFO 320 has not been completed I hope you have found this fact-sheet useful it is only meant as a brief guide. Please don’t hesitate to contact me if you have any questions arising.