The process for bringing a claim for serious complex injuries, when the injured person is under the age of 18, is slightly different to that for an adult. In this article, we look at the major differences in the process.
Litigation Friends – why is one needed and who can be a Litigation Friend?
By law, those under the age of 18 are deemed to lack the capacity to bring a claim in their own right. This means that they cannot start a claim for compensation following injury without having a Litigation Friend appointed. The Litigation Friend brings the claim on behalf of the child and will be responsible to instructing the solicitor and making important decisions on behalf of the child. A Litigation Friend has a duty to act fairly and competently at all times and in the child’s best interests.
So, who can be a Litigation Friend? Its usual practice for one of the child’s parents to be a Litigation Friend but this isn’t always possible or appropriate. For example, if both parents were also injured in an accident, they may not be well enough to bring a claim. If the child was injured in a road traffic collision in which one of the parents was driving and was at fault, that parent will not be able to be Litigation Friend for the child, or they may feel they lack the time, perhaps due to increased care needs of the child, or the skills set, to be able to bring the claim on the child’s behalf.
In these circumstances another family member or friend could be appointed as Litigation Friend, but they must be over 18 and they must consent to their appointment as Litigation Friend. If there is no-one suitable or willing to act as a Litigation Friend, then the Court may ask the Official Solicitor to step in as a last resort.
Is there a time limit for starting a claim for a child?
We always recommend instructing a solicitor as soon as possible after injury has occurred so that witness statements can be gathered whilst the incident is still fresh in the mind and evidence obtained as early as possible. There are however time limits, known as the Limitation Period, set by the Courts as to when a claim can be started in the Courts. For adults this is generally three years from the date of injury. For children it is generally three years from the date of their 18th birthday, so effectively their 21st birthday.
There are some exceptions to this, for example if the injuries were caused by an unprovoked attack, including shaken baby syndrome, then the limitation period under the Criminal Injuries Compensation Authority Scheme is two years. If the injured person lacks mental capacity, then there is no limitation period, unless capacity is regained, at which point the limitation period begins. An experienced major trauma solicitor will be able to advise you further on the date by which Court proceedings must be issued. If this date is missed, the claim will normally be considered Statute Barred, and will only be able to continue in very limited circumstances.
How long will it take for a child’s claim to settle?
It can be difficult to assess how a child’s injuries will affect their lives in the future, especially if the injuries are sustained at a very young age. Medical reports will be obtained from appropriate specialists who will predict the prognosis for the future. In cases of severe injury this can include predictions like will the child ever be able to work, will they be able to live independently or will be need care and support in the future? Claims cannot be settled until a reliable prognosis is received and this could mean that the claim may take many years to conclude. However, an experienced major trauma solicitor may once liability has been established be able to obtain interim payments as the claim progresses.
Interim payments are payments which may be made prior to the final settlement being reached. They are intended to help people to pay for medical expenses, care needs, rehabilitation, the purchase of specialist equipment or for housing adaptations. Interim payments are deducted from the final settlement figure achieved, so if for example a child’s claim settled for £750,000, but £130,000 had been received in interim payments, the final amount paid would be £620,000.
My claim was started by a Litigation Friend, but I’ve now turned 18. What now?
When a child turns 18, the role of a Litigation Friend automatically terminates, unless they lack the mental capacity to bring a claim. At this point, the child, who is now legally an adult, continues to bring the claim in their own right.
What is an Infant Approval Hearing?
If the claim settles whilst the child is under 18, it will need to be approved by the Court at an Infant Approval Hearing. A Judge will review the evidence in the case and the settlement that has been agreed to ensure that it is a fair settlement. It will be necessary for the Litigation Friend and the child to attend the Court for the Infant Approval Hearing and the Judge may wish to ask whether the child has fully recovered from their injuries, but they are unlikely to ask too many questions of the Litigation Friend or the child. Often an opinion from a barrister is provided separately for the court only to provide some assurances that the level of liability or quantum award obtained is correct.
Where is the compensation paid to?
Once an Infant Settlement Hearing has taken place, the Court has approved settlement, the defendant will by default normally make payment into the Court Funds Office which will hold the money until the child turns 18. It is possible to apply to the Court Funds Office for the release of funds if the child needs money before turning 18, but the Litigation Friend will need to:
- Provide evidence that the child will benefit
- Provide proof of exact costs
- Attend a hearing
- Pay a fee.
Funds are usually transferred from the Court Funds Office, to the child, on their 18th birthday.
It is however possible to ask the court for the settlement amount to be invested in a different way if it can be shown that there would be a better return on the investment. This will normally require the evidence of a specialist financial advisor or expert whom members of the Major Trauma Group will normally work with.
How Major Trauma Group can help
If your child has suffered an injury in an incident and you wish to speak to a specialist solicitor about a potential claim, contact Major Trauma Group via email (firstname.lastname@example.org), telephone (0330 311 2578) or via live chat on our website (available Monday-Friday 9am to 5pm).
The Major Trauma Group is a not-for-profit community interest company, made up of leading law firms from across the country who, together with clinicians, have pooled their knowledge and experience to assist major trauma victims and their families through the provision of legal advice and ancillary services. Initial chats with our member solicitors, are free and without obligation.