In order for a child under the age of 18 to bring an injury claim in the Civil Courts, they require a litigation friend. This is an adult who is able to make decisions on behalf of the child and provide their solicitor with instructions.
The litigation friend is usually someone who already has a close relationship with the child, such as a parent or guardian. It is important that a litigation friend should not have a conflict of interests with the child. For example, it would not be appropriate for the parent of a child involved in a road traffic accident where that parent was driving the car to be their litigation friend, as it may be that the parent was wholly or partly to blame for the accident.
A litigation friend will have to have their suitability to act on behalf of the child confirmed by the Court. They should only ever act in the best interests of the child.
A Litigation Friend In Child Injury Claims
Claims At Trial
When a child’s claim is settled, either prior to or at a trial, then the Court will need to approve that settlement. This is to ensure that the settlement is appropriate in the circumstances and to ensure that the child is not taken advantage of and their interests are protected.
If a child’s claim is settled prior to trial, the hearing at which the Court approves the settlement is called an infant approval hearing. This takes place in a relatively informal setting, usually in the District Judge’s chambers.
Usually only the District Judge, the solicitor acting for the child, the litigation friend and the child will be present. The District Judge will read all of the papers and ask the litigation friend, and sometimes the child as well, some questions in order to be satisfied that the settlement is appropriate.
Settlements
If the Court is satisfied that the settlement is appropriate then the Judge will approve it and make an order for the defendant to pay the child’s compensation into the Court Funds Office, where it will usually be held until the child is aged 18.
When the child reaches 18 the money will automatically be paid out to the child. It is therefore very important to keep the Court Funds Office informed of any changes of address in the meantime.
Sometimes the Court will allow the compensation to be paid into another account, usually a child trust fund. Although the compensation will be held until the child reaches 18, it is possible to make an application to the Court for a payment out of part of the compensation.
However, it will be necessary to convince the Court that the money is reasonably required for the child – for example, for a school trip or a computer to help with schoolwork. If the Court is not convinced then the application will not be approved.
Costs & Expenses
A litigation friend may also make a claim for payment out of the compensation for costs and expenses incurred by them. The litigation friend will need to convince the Court that the expenses are reasonable and have been reasonably incurred.
Solicitors acting for a claimant are entitled to charge the claimant a success fee if their claim is successful. This applies to children’s claims as well as adults. The success fee is calculated as a percentage of the costs incurred in running the claim but capped at 25% of the compensation.
In addition, it may have been necessary to take out an insurance policy on behalf of the child to protect them against the costs of losing the claim. The cost of that insurance policy will also need to be paid out of the compensation received by the child.
It is therefore necessary for the litigation friend to apply to the Court for a payment out of the compensation of these costs which are payable to the solicitor.
How Nelsons Can Help
Dianne Collins is a solicitor at Nelsons specialising in personal injury law.
For more information on bringing a claim on behalf of a child, please contact our Personal Injury team at Nelsons on 0800 074 1976 or use our online contact form.