Claims can be brought by both children, and individuals who lack mental capacity, known as protected parties. Whilst claims can be brought by children and protected parties, they cannot bring a claim in their own right. Whilst the litigation steps involved in the claim are dealt with in a similar way to a claim with an adult claimant, a litigation friend is needed to act in the best interest of the child claimant / protected party.
In order to act as a litigation friend, on behalf of child (someone under the age of 18 years old) or a protected party claimant, a certificate of suitability must be completed and filed at court. The litigation friend is often a parent of the claimant or someone with a close relation to them and someone who has the claimant’s best interest at heart.
In the event that there are no suitable parties to take on this role, then the Official Solicitor will be appointed to act as the litigation friend.
When a claim proceeds through the litigation process, the solicitor for the claimant will keep the litigation friend up to date with all events and provide legal advice on the best way to proceed with the claim. However, the solicitor will also ask the litigation friend for their input in the hope that they know what would be best for the claimant.
Only when settlement of a claim has been provisionally agreed between the claimant (through the litigation friend) and defendant, does the process of a case differ from that of an adult claimant. At this stage, either a barrister or senior solicitor acting on behalf of a child or protected party will need to review the case as a whole and prepare an advice for the court. This written advice will outline whether the settlement provisionally agreed, is a fair and proportionate compensatory figure for the injury and losses sustained by the claimant.
Subsequent to this, a settlement hearing will then be listed by the Court where a Judge will review the facts before them and the written advice provided regarding settlement. If the Judge is content with the advice provided and is in agreement that the provisional agreement reached is appropriate, an order will be sealed by the Judge confirming the terms of settlement reached.
The size of the settlement figure will impact how the Court decides to manage the settlement monies agreed upon. On occasions, the Court will order that the litigation friend manage and invest the money on behalf of the claimant until the claimant reaches the age of 18.
It is often the case that the court will order that the money be paid into a Child Trust managed by the court which will be paid out (including accrued interest) when the child attains the age of 18.It should be noted that a litigation friend can contact the court after the claim has been settled and apply for part of the money to be released early, if they can show there is need for this (such as educational or health reasons on behalf of the child).
In relation to Protected Parties, rather than releasing the money to the protected party upon their 18th birthday (depending on whether they were a child before the claim settled), the money will be held in a trust and the Court of Protection will be in charge of dealing with the financial decisions of the protected party for their lifetime.
If you or someone you know needs advice in relation to being appointed as a litigation friend in a claim or would like to discuss a claim involving a child or protected party, then please contact our Personal Injury and Abuse team by sending us an email on info@ramsdens.co.uk or calling us on 01484 821 500.