M (A Child) , Re

In a child’s personal injury claim, legal representatives may negotiate settlement on the litigation friend’s instructions where, having regard to the available evidence and the circumstances, that is the course most likely to advance the child’s interests. A settlement requires court approval. Legal advisers should not pursue negotiations unless there is a reasonable prospect that the court will approve the proposed settlement.

A child brought a personal injury claim arising from a fall from a flat window. Liability had been settled and damages remained to be assessed. There was conflicting expert evidence about the extent and consequences of any acquired brain injury. The child’s parents were unwilling to co-operate with further expert work or implement recommended support, while the litigation friend instructed that the action should be settled promptly.

The claimant’s solicitors sought directions on whether to apply under CPR r21.7 for termination and replacement of the litigation friend, and whether they could negotiate settlement on the existing instructions. The court considered the course most likely to secure the claimant’s best interests.

1. The court directed the claimant’s legal representatives to negotiate a settlement on the basis of the existing medical and other evidence, acting on the instructions of the litigation friend.

2. The court considered that appointing a new litigation friend was unlikely to improve matters. The parents would probably remain at least as unco-operative, and replacement would not assist in advancing the claimant’s best interests.

3. Any settlement on behalf of the child required court approval. It would be inappropriate for the claimant’s legal advisers to pursue a negotiated settlement unless there was a reasonable prospect that the court would approve it.

4. The court subsequently approved the settlement reached following the direction.

First-instance decision. The judgment does not state any subsequent appellate history.