Injury Claims for Children and Protected Parties

Who Brings the Claim: The Litigation Friend

Direct Answer: A protected party must have a litigation friend to conduct proceedings, and a litigation friend must ordinarily conduct proceedings on a child’s behalf (CPR 21.2). Usually this is a parent or guardian.

Without a court order, someone may act as litigation friend if they can fairly and competently conduct the proceedings and have no interest adverse to that of the child or protected party (CPR 21.4). That second condition matters in practice: a person whose own interests could conflict with the injured person’s, for example a party who may be partly responsible for the accident, is not an appropriate choice.

The rules also say that, until a child or protected party has a litigation friend, steps taken in the proceedings generally have no effect unless the court orders otherwise (CPR 21.3). Getting this right at the outset avoids wasted steps later.

Why a Judge Must Approve the Settlement

Under CPR 21.10(1), no settlement, compromise or payment (including a voluntary interim payment) is valid, so far as it relates to a claim by or on behalf of a child or protected party, without the approval of the court. In plain terms: you and the defendant can agree a figure, but it only binds once a judge approves it.

This is a safeguard for people who cannot protect their own interests. It also means that the settlement offers described on our Part 36 offers page cannot simply be accepted and closed off in the usual way where the claimant is a child or protected party. Ask your solicitor how the approval step affects timing.

What Happens to the Money

CPR 21.11(1) provides that money recovered by or on behalf of a child or protected party is dealt with in accordance with the court’s directions and not otherwise. The litigation friend therefore does not receive the damages to hold personally. The court decides how the sum is held and applied.

Costs, Success Fees and the Litigation Friend

Rule 21.12 deals with costs and expenses incurred by a litigation friend. In summary, a litigation friend who has paid costs or expenses on the child’s or protected party’s behalf may seek to recover them from the money recovered, provided they were reasonably incurred and reasonable in amount, and the rule supplies its own limits (including a cap that applies where the claim settles for £5,000 or less). Read the rule itself, linked in the sources below, for the detailed conditions.

For how a success fee and other deductions work in an ordinary adult claim, see conditional fee agreements and legal costs explained. For a child or protected party the settlement needs court approval, so ask your solicitor for a written breakdown of every deduction beforehand.

Time Limits Work Differently

The ordinary three-year personal injury limit in section 11 of the Limitation Act 1980 is modified by section 28: where a person was under a disability when the right of action accrued, the period runs from when the disability ends, and for personal injury claims that period is three years (s.28(6)). For a child, that is generally three years from their 18th birthday. Do not treat this as a reason to wait; evidence, witnesses and medical records are easier to obtain early, and a parent can start the claim sooner.

Whether a particular person is a protected party depends on whether they lack capacity to conduct the proceedings, which is a question for the court and suitably qualified professionals, not something this page can decide for you.

What to Ask Your Solicitor

1. Who will act as litigation friend, and is there any conflict of interest?
2. What does our funding agreement say, and how will it be put to the court?
3. Exactly what will be deducted from the settlement, in pounds?
4. When is the approval hearing, and do we need to attend?
5. How will the court direct that the money is held and applied?

Frequently Asked Questions