OP v Lancashire Teaching Hospitals NHS Foundation Trust

When approving a proposed settlement for a child, the court must determine whether the agreement is in the child’s best interests. The assessment should address the value and structure of the award, including the balance between any lump sum and periodical payments. The court may rely on detailed legal advice, the case papers and independent financial evidence. Where those materials establish that the figures and payment structure are suitable, fair and appropriate for the child’s anticipated needs, approval may properly be given.

The claimant, aged 15 and acting by his father and litigation friend, brought clinical negligence proceedings against the defendant NHS Foundation Trust arising from neonatal management and severe hypoglycaemic brain injury.

Liability was denied, but the parties reached a compromise in 2018 under which the claimant recovered 80 per cent of the claim’s value. That compromise had already been approved. The present hearing concerned approval of a further settlement of damages comprising a £4.5 million lump sum and periodical payments for care and case management, with an approximate capitalised value of £13 million.

The central issue was whether the proposed damages settlement, including its financial structure, was in the claimant’s best interests.

1. Settlement approved. The court was satisfied that the proposed agreement was in the claimant’s best interests and ordered approval of the settlement.
2. The claimant had permanent and profound disabilities, including four-limb cerebral palsy, global developmental delay, visual impairment, epilepsy, scoliosis, lack of speech and useful hand function, and complete dependence for daily activities. His complex needs required a very substantial financial package.
3. The settlement had been calculated by identifying appropriate ranges for the relevant heads of loss on the full value of the claim, then applying the previously agreed 80 per cent recovery. The court considered detailed advice from leading counsel and the legal team, the case papers and an independent financial adviser’s report.
4. The court concluded that the figures and structure were suitable, fair and appropriate. In particular, the balance between the lump sum and lifetime periodical payments provided an appropriate basis for meeting care, case management, accommodation, therapy and equipment needs. The periodical payments were index-linked by reference to the carer worker index through the ASHE 6115 mechanism, which had been approved by the courts.
5. The order also approved payment of a component of the lump sum to the claimant’s parents. A professional deputy would manage the damages with the parents to meet the claimant’s needs.