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The new protocols for RTA and EL/PL claims outline the additional fixed costs which can be recovered in respect of an infant approval hearing when acting for a child claimant. However, the protocols' guidance doesn't answer many other issues surrounding the funding of PI claims on behalf of children.
CPR 46.4 makes it clear that no money may be deducted from an award to a child or a protected party without the permission of the court. What is far less clear, is in what circumstance the court would give such permission? Can the issue be dealt with by summary assessment or, is it necessary to go to the expense of a detailed assessment?
Traditionally, the courts have been reluctant to order costs against a protected party. If this approach continues in the post-Jackson world, claimant solicitors will find themselves unable to take a proportion of the child's damages as their success fee under a CFA.
This issue has arisen as a consequence of the implementation of ss 44 (4) and 46(1) of LASPO Act 2012, which prevents the recovery of additional liabilities from defendants.
To date, there has been no higher court judicial guidance on this issue, which is unfortunate, as it is anticipated that the vast majority of firms will find it uneconomic to act for child claimants if they are only paid fixed costs under the protocols. In common with claimants generally, child claimants benefited in April 2013 from the 10% increase to their general damages following the decision in Simmons. If claimant solicitors are not allowed to claim their success fee from a child's damages, child claimants will get a windfall of 10% more general damages than if their claim had settled pre-April 2013.
Where a Litigation Friend entered into a CFA before April 2013 but, before the claim settles, the child reaches the age of 18, the original CFA will cease to be valid. A new post-April 2013 CFA can be entered into by the claimant, but it will only run from the date of the new CFA. This puts the recoverability of the costs incurred under the original CFA in doubt. This issue has not yet come before the courts and so the impact on the claimant solicitor's costs is unknown.
Some judges are taking the view that PD 44 para 9.9(2) allows them to undertake a summary assessment of the claim when considering payment of the success fee. Other judges consider the level of information they require to make a decision in the best interests of the child needs to be provided by way of detailed assessment. If a detailed assessment does take place, the claimant solicitor is in a position of conflict; representing both the child's interests and their own interests.
Other judges having been making directions in the following terms:
Anecdotal evidence is that some firms are undertaking PI claims on behalf of children by:
On the 2 May 2014, the CPR committee confirmed they were considering this issue and, specifically, what (if any) amendments need to be made to the CPR to resolve the difficulties outlined above.
Until clarification of the rules is provided, practitioners are left with significant uncertainty regarding whether PI claims on behalf of children are economically viable and exactly what (if any) costs can be reclaimed from the claimant's damages.
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