This article was first published in the APCP Newsletter on 3 January 2023
A personal injury can be pursued where one party has been negligent, resulting in injury and loss to another. What this means in practice is that if somebody (a ‘Claimant’) has been injured due to another’s fault, they can pursue a claim for compensation.
Personal injury cases involving serious injury can typically last several years, because the case cannot be concluded until the solicitor is able to advise the injured Claimant what the future might hold, for example, where they might work; for how long and until what age; and what care or treatment they may need in the future.
Cases involving children however are often run differently. Firstly, they can last a significant length of time. Although an extreme example, I was instructed on behalf of a 4 year old girl who sustained significant fractures to her arm. This case lasted 19 years because as my client aged, her bones re-modelled and she required further surgeries. It was only when she reached adulthood and was about to graduate from university that I was able to safely reach a view as to how her ability to work had been affected by the accident.
Furthermore, the law states that a claim may not be conducted by somebody under the age of 18, meaning that a child must have a ‘Litigation Friend’ to conduct the case on their behalf.
Practically this means that the Litigation Friend, who will usually be a family member, will take decisions on behalf of the child and provide the solicitor with instructions as the case progresses. The situation can become more complicated where there is no suitable family member to act as Litigation Friend and in such cases an application would need to be made to the Official Solicitor, who will then assist the child with the litigation by acting as their Litigation Friend.
Another way that a child’s case differs from that of an adult (unless the adult is deemed to be a protected party, for example because they lack capacity due to brain injury) is that no payments can be made to a child unless the Court approves it. As litigation progresses, there may often be interim (advance) payments made by an insurance company to a child to assist with their rehabilitation or with their education. The Civil Procedure Rules, which govern the way that personal injury cases are run in the UK, requires that any interim payment must be approved by the Court. This safeguard is in place to protect a child and a Court will consider the child’s best interests.
When a case concludes, which is usually in a negotiated settlement, again the Court’s approval must be sought. The vast majority of cases are resolved at a settlement meeting without the need for a trial at court. However, even if the parties all agree on the terms of the settlement, when a child is involved it must still be approved by the Court. A Judge will consider all of the available evidence and make a decision as to whether he or she believes it is in the child’s best interests to conclude the case on those terms.
Once settlement has been reached and approved by a Judge, payment is usually made into the Court Funds Office where it is held until the child is 18. A Litigation Friend may apply periodically for payments out of the Court Funds Office for the benefit of the injured child. If the child has capacity at the age of 18, then payment will be made from the Court Funds Office to the child. This can present the child’s family with challenges where an 18 year old suddenly receives a substantial sum of money.
It is imperative that anyone assisting a child to pursue a personal injury claim instructs a specialist solicitor. A seriously injured child’s needs are inevitably complex, meaning that through a personal injury case a solicitor will ensure that funds are in place for a full programme of rehabilitation and support. A solicitor will also consider the impact of any injury on a child’s education and if necessary signpost the child and family to a solicitor specialising in education law. Specialist solicitors must have good knowledge around Education, Health and Care Plans (EHCP); ensure a child receives the care he or she may be entitled to from the local authority; be alive to any employment issues which parents may face as a result of their child’s accident; and to ensure that a child and their family receive appropriate advice on settlement and investment once a case has concluded.
As a solicitor who has acted on behalf of many injured children over the last 20 years, I have seen first hand the devastating and far-reaching impact that a child’s injury has across the whole family. It is imperative that the child’s family instructs a solicitor with the right expertise and experience to progress a child’s case quickly to ensure that the right care, rehabilitation, education, accommodation, equipment and transport is in place as soon as possible.
Richard Biggs is a Senior Associate Solicitor at Irwin Mitchell LLP specialising in serious injury cases.