Infants cannot legally pursue a claim themselves as they lack the necessary legal capacity. Instead, a litigation friend needs to be appointed to represent the injured child and act on their behalf.
It is the litigation friend who will instruct the solicitor to act on behalf of the infant claimant.
The litigation friend has to be someone above the age of 18 and must be competent to act. The litigation friend can be a parent, a family member, a friend or a guardian.
The main duties of a litigation friend are:-
a. To fairly and competently conduct the claim on behalf of the child
b. To have no personal interest in the claim which is adverse to that of the child
c. To keep all steps and decisions in the claim only for the benefit of the child (CPR 21.4).
The limitation period
There is a fixed period of time during which a personal injury claim can be made. In relation to personal injury claims involving adults, the general rule is that a claim must be commenced within three years from the date of the accident. If the Court proceedings are not formally commenced before the three year deadline then, the claim is statute-barred under the Limitation Act 1980. There are of course exceptions and an adult is not prevented from making a personal injury claim just because the limitation has expired. However, it is the Court that has the discretion to extend the three year limitation period.
In claims involving children, the time limit for claiming personal injury is different from that of adults. The three year limitation period only starts when the child reaches their eighteenth birthday hence, a child can claim personal injury up to their 21st birthday.
What happens next?
When liability has been established and is not an issue, the solicitor will obtain medical evidence to show what injuries the child sustained, the severity of the injuries suffered and when the child should fully recover from these injuries.
The child’s medical evidence will then be disclosed to the Third Party Insurers for them to make a reasonable offer. It should be noted that any offer made by the Third Party Insurers must be in line with the valuation provided by a Barrister.
Infant Approval Hearing
When the child has fully recovered from their injuries, an Infant Approval Hearing will be listed to take place in the child’s local County Court for a Judge to approve the award offered.
No settlement involving a child is valid without the Court’s approval, this is governed by Part 21 of the Civil Procedure Rules. The Judge has to ensure that the child’s best interests are being protected and ensure a reasonable award is made.
During the hearing, the Judge will consider the medical evidence in addition to the offer of compensation made by the third party insurers. The Judge will have to be satisfied that the child has recovered fully from their injuries and that the offer made by the Third Party Insurers is a reasonable offer.
The hearing is short, private and informal that usually takes place in the Judge’s chamber. The Judge may ask questions to the litigation friend to make sure the infant claimant has recovered in line with the prognosis provided by the medical expert.
The litigation friend and infant claimant will both have to be in attendance, the litigation friend will have to ensure they bring the claimant’s original birth certificate. The claimant’s solicitor will either represent the claimant during the hearing or will instruct a barrister to do so.
If the Judge is satisfied that the amount offered to the infant claimant is appropriate, the award will be approved and an Order will be made for the compensator to pay the infant claimant’s compensation into the Court Funds Office, this is to protect the compensation money on behalf of the child.
The child’s compensation will be invested in the Court Funds Office in London and will be released, with interest, when the child turns 18 years old.
The Court Funds Office will write to the claimant just before their 18th birthday, it is therefore, extremely important to let the Court updated of any change of address.
In the event that money is required for the benefit of the child prior to their 18th birthday then the litigation friend will have to apply to the Court for some money to be released. Any payments made will be subject to the Judge’s discretion.