TUV v Great Ormond Street Hospital NHS Foundation Trust

When approving a settlement for a protected party, the court must safeguard the claimant’s interests, ensure that the defendant obtains a valid discharge, and ensure that the compensation is properly structured and applied. Periodical payments may be preferable to a lump sum where they secure lifelong care and avoid reliance on an unrealistic investment return. In approval-only personal injury proceedings, anonymity may be ordered where identification would cause substantial privacy intrusion and no sufficient public interest justifies it. The court may approve a reasonable compromise without deciding an important unresolved issue of law where the settlement adequately meets the claimant’s needs.

The claimant, a protected adult lacking capacity to conduct proceedings, brought a clinical negligence claim against the NHS Trust responsible for Great Ormond Street Hospital. The defendant admitted liability and causation for brain damage suffered following a cardiac arrest in 2001, caused in part by the absence of appropriate emergency equipment in an EEG department.

The parties agreed compensation comprising a lump sum and periodical payments for future care and case management. Court approval was required because the claimant was a protected party. The court also considered reporting restrictions and the unresolved approach to compensating a claimant who was already injured before suffering additional negligent injury.

1. Settlement approval. The court approved the agreed settlement and draft order. Its purposes were to safeguard the protected party’s interests, provide the defendant with a valid discharge, ensure that recovered money was properly looked after and wisely applied, and protect dependants’ interests.
2. Periodical payments. The order included periodical payments under s 2 of the Damages Act 1996. The parties had considered the relative advantages of a lump sum and periodical payments. Under CPR 41.7, the court had to consider all the circumstances, particularly whether the proposed form of award best met the claimant’s needs. Under PD 41B para 1, it also had regard to the scale of the annual payments and the parties’ preferences. Periodical payments were appropriate because they secured funding for care throughout the claimant’s life and avoided reliance on a 2.5 per cent investment return that was not currently available.
3. Anonymity. Following JX MX v Dartford & Gravesham NHS Trust [2015] EWCA Civ 96, the court ordered that the claimant and her parents should not be identified. The public interest in open justice did not outweigh the privacy intrusion in this approval-only case. The order was qualified so that reporting material contained in the public judgment would not breach it.
4. Unresolved compensation issue. The claimant’s pre-existing disability created an important question concerning compensation for additional harm suffered by an already injured claimant. The court referred to Reaney v University Hospital of North Staffordshire Trust [2014] EWHC 3016 (QB) and Murrell v Healy [2001] EWCA Civ 486, but did not determine the issue because the parties had reached a reasonable compromise meeting the claimant’s reasonable needs.