Claims involving a mentally incapacitated claimant—court approval
Claims involving a mentally incapacitated claimant—court approval

The following PI & Clinical Negligence practice note provides comprehensive and up to date legal information covering:

  • Claims involving a mentally incapacitated claimant—court approval
  • When court approval is required
  • Approval prior to proceedings being issued
  • Approval post proceedings being issued
  • Confidentiality of the settlement figure
  • Costs

Claims involving a mentally incapacitated claimant—court approval

When court approval is required

Any settlement, compromise or payment arising from a claim on behalf of a protected party is not binding unless it has been approved by the court (usually the Court of Protection).

A compromise involving a protected party needs to be approved:

  1. first, because the court needs to be satisfied that the compromise is fair: it safeguards protected parties from any mistakes by their legal advisors or from pressure to settle a case quickly for less than it is worth

  2. secondly, because a court-approved compromise protects the defendant, as it ensures that the defendant is properly discharged from the claim

  3. finally, because the court ensures that the money is protected and properly looked after by being invested on behalf of the protected party

A Master, a Designated Civil Judge or their nominee should normally hear applications for the approval of a settlement or compromise involving a protected party.

It is worth noting that the Queen’s Bench Guide states at para [13.8] that in cases where the issue of capacity is not clear, the parties may seek the court’s approval of a settlement without determination of the issue of capacity.

In Johnson, the court made no ruling in relation to litigation capacity but invoked its powers under the CPR and its inherent jurisdiction to approve in such an instance. This

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