Louise Grimshaw v Dr Timothy Hudson

The High Court may use its inherent jurisdiction to approve a settlement where neither party asserts incapacity but there is a sufficient concern about the claimant’s capacity to justify protective intervention. The court must perform the same external propriety check required for approval involving a protected party, including by considering the settlement on the artificial premise that the claimant lacked capacity.

Where no litigation friend has acted, the court may also order that procedural steps are valid and effective if that is justified and proportionate, promotes certainty and finality, and avoids unnecessary costs or litigation. The court need not determine capacity or require the appointment of a litigation friend where doing so would create artificiality without improving the protective process.

The claimant brought county court clinical negligence proceedings against the defendant. The parties agreed a settlement of £700,000, without admission of liability, subject to court approval. There was no assertion that the claimant lacked capacity, but expert evidence created a sufficient question-mark about her capacity to conduct the litigation.

The proceedings were transferred to the High Court because the application invoked its inherent jurisdiction. The central issues were whether the settlement should be approved as a protective measure for the purposes of CPR 21.10, and whether the absence of a litigation friend required a further protective order under CPR 21.3(4).

1. Approval under the inherent jurisdiction. The court held that the approach illustrated by Coles v Perfect applied. The inherent jurisdiction could properly be invoked where there was a sufficient concern about capacity, even though neither party alleged incapacity, because approval could promote finality and avoid an unnecessary trial of capacity.
2. The court identified two questions: whether there was a good reason to invoke the jurisdiction, and whether the court was able to perform an appropriate propriety check. The second question required the court to replicate the external safeguard supplied by approval under CPR 21.10(1), adopting the artificial premise that the claimant lacked capacity while making no finding that she did.
3. Having considered the medical evidence, the confidential legal advice, the litigation evidence and the parties’ positions on liability, causation and quantum, the judge was satisfied that the settlement was sensible and in the claimant’s best interests. It was therefore approved under the inherent jurisdiction, intended to stand as approval under CPR 21.10 if incapacity later emerged.
4. Absence of a litigation friend. The court considered Dunhill v Burgin, including the importance of both a litigation friend and court approval. The judge did not decide whether the absence of a litigation friend would independently invalidate the settlement, but held that it was justified and proportionate to make a precautionary order under CPR 21.3(4).
5. The court declined to require the appointment or pursuit of a litigation friend. No party alleged incapacity, no capacity inquiry was sought, and such a step would introduce unnecessary artificiality without improving the court’s ability to conduct the propriety check. The court ordered that all steps taken in the proceedings were valid and effective, approved the compromise, stayed the proceedings with liberty to apply to enforce it, and dealt with costs.