EXN v Alder Hey Children's NHS Foundation Trust

Where a protected party’s damages claim has been settled, the court must assess whether the proposed settlement is in that party’s best interests before approving it. The assessment may include the amount, structure and timing of any lump-sum and periodical payments, together with any proposed apportionment of payments to a litigation friend. An anonymity order may be made where necessary to protect the claimant, having regard to the applicable principles.

The claimant, aged 13 and acting through a litigation friend, brought a clinical negligence claim arising from catastrophic brain injury sustained after delayed diagnosis. Breach of duty and most aspects of causation had been admitted, with one causation issue and quantum remaining for trial. The parties reached a settlement before trial, comprising a lump sum, periodical payments, an apportionment for past gratuitous care and expenses, and payment into the claimant’s deputyship account. The court was asked to approve the settlement and determine anonymity.

1. Anonymity. The court made an anonymity order because it was necessary for the protection of the claimant, applying the principles in X v Dartford and Gravesham NHS Trust [2015] 1 WLR 3647. The defendant adopted a neutral position and no member of the press or public objected.
2. Settlement approval. The court considered the confidential advice of counsel, the independent financial adviser’s reports, the litigation materials and the parties’ positions before trial. It was satisfied that the proposed settlement was sensible from the claimant’s point of view and approved it as being in his best interests.
3. The order provided for a lump sum of £7,750,000, subject to specified credits and an apportionment of £455,000 to the litigation friend for past gratuitous care and expenses. The balance was payable into the claimant’s deputyship account. Index-linked periodical payments were ordered for future care and case management, initially at £330,000 annually and thereafter at £337,500 annually for life.
4. An order for costs and a further interim payment on account of costs of £175,000 were also made.