The court’s role where a claimant does not have capacity

How the court system deals with those who require assistance to take (or defend) a claim can present difficulties for clients and lawyers alike. These include children “protected parties” (adults without the capacity to litigate) who need extra support.

As part of the work that we do in clinical negligence and personal injury, we deal with many children and protected parties but there often is a lack of understanding of what this means both in terms of who is involved and the implications.

A protected party is simply a party who lacks the mental capacity to conduct proceedings.  For adults, this is based on medical evidence from usually a GP, psychiatrist, neurologist, or neuropsychologist.  For them to take a claim forward therefore they must have a “litigation friend” who deals with the case on their behalf.  Children are deemed to be in essence protected because they lack capacity by reason of age.  Older teenagers would resent that (particularly considering the Gillick competent discussions around covid vaccines) but it is very exceptional that the court will grant an order permitting a child (teenager) to conduct proceedings without a litigation friend.

The court has an extra layer of responsibility when dealing with a protected party or child and this is where the issues occasionally arise.  All settlements must be approved by the court but that doesn’t mean just the final settlement of the claim.  During a claim if the claimant has been successful in establishing fault and harm then they should receive interim payments. These are payments made by the defendant during the case which allow the claimant to start to rebuild their own life or to put in place care, accommodation and assistance which will improve the quality of their life following an accident of some kind.

With a child or protected party, the court’s role is also to approve payments whether at the end or during a claim.  The court should be involved, even if proceedings have not been issued.   The court has a fundamental supervision and checking role. A judge must approve the payment.

The new rules coming in on 1 October 2021 make clear that applications for approval of voluntary interim payments should be made.  The court can also order costs to be paid. In short, the rules make clear that every stage where a payment is to be made the court should be involved. This emphasis implies that some are forgetting the need for the court to approve on an ongoing basis as well as at the end.

The purpose for the approval is important.  It means that a separate judicial pair of eyes reviewing whether the interim payment is sufficient and approving how it is to be spent.  Interim payments do not have to have a specific purpose.  If a claimant is entitled to damages it is not the concern of the defendant (despite their best endeavours) as to how that money is spent, but in reality, the purpose of the interim payment is often to try and improve quality of life and to put in place care and assistance that is required.

Whilst a claimant with capacity may spend funds as they feel fit generally, we encourage a wise use of funds. For a protected party someone else has access to the funds. Sometimes there are separate provisions in place but not always. It is therefore vital that the court has an overview in approving the interim payment. The judge must be satisfied that the money is going to be used wisely, for a reasonable purpose and for the claimant’s benefit.

Claimants often struggle with the idea that the court is involved in this.  It is a layer of bureaucracy for some.  It can cause delay because the court system is backlogged.  It is however essential.

It is important to note that until the court has approved a settlement, a defendant can resile from an agreement.  The delay in approval can therefore add a layer of risk for a vulnerable claimant which a non-protected party does not have. In short, a claimant with capacity can accept an offer and it can be binding once agreed. This is not the position for a protected party or child.

In the recent case of Wormald v Ahmed https://www.bailii.org/ew/cases/EWHC/QB/2021/973.html a protected party had died and therefore elements of the settlement or areas of claim no longer were appropriate. The defendant resiled from the settlement prior to the approval hearing and the court upheld that decision.

The rules regarding protected parties therefore are complex.  Not all, but many protected parties are unwell.  Sometimes this is because of psychiatric illness but often there is a significant physical disability.  Protected parties are therefore vulnerable, but it remains the case that it is the court’s decision to approve either an interim payment or a final settlement that is pertinent.

The role of the solicitor therefore is always to advise litigation friends of the situation between settlement and approval and as the case progresses.  Running a case on behalf of someone else is an enormous responsibility but as with all these cases there are risks in terms of litigation which must be factored into decisions made.  One of those is that at all pertinent stages there is likely to be a judge involved and their decision may be delayed. The litigation friend may accept an offer.  Ultimately it is the job of the judge to determine whether that is appropriate in all the circumstances whether an interim decision or final.  The litigation friend has power but only to a certain point.  That restriction is something  that the litigation friends need to be advised of very carefully and particularly in light of the new court rules and the recent case in relation to the court’s role.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*