DAH v Sally Kenny

When approving a settlement involving a protected party, the court must act as an external safeguard and decide whether the proposed compromise is in the protected person’s best interests. The assessment includes the evidence, the reasonable value and prospects of the claim, and the proposed form of award. A lump sum may be approved where it best meets the claimant’s needs after consideration of the relevant factors. An anonymity order may be made where, in the circumstances of the case, the protected party’s rights under Article 8 ECHR significantly outweigh the Article 10 ECHR rights of the press and public.

The claimant, a protected party represented by his mother and litigation friend, suffered very severe head injuries in a road traffic accident. Liability had previously been compromised on a two-thirds/one-third basis in the claimant’s favour.

At a joint settlement meeting, the parties agreed damages of £2.5 million gross of interim payments and CRU, net of the liability deduction, together with reasonable costs. The court was required to approve the proposed damages settlement and make consequential orders concerning costs and expenses. It also considered anonymity and the form of award.

1. The court made an anonymity order. It recognised the presumption of open justice, but held that, in the context of the case and the settlement of a substantial sum for a protected party, the claimant’s Article 8 ECHR right to privacy and private life significantly outweighed the Article 10 ECHR freedom of expression rights of the press and public. The court had regard to the principles in X v Dartford and Gravesham NHS Trust [2015] 1 WLR 3647.
2. The purpose of the approval hearing was to determine whether the proposed settlement of damages was in the claimant’s best interests. The court described its role as an external check and safety valve where a party is protected.
3. Having considered leading counsel’s advice, which addressed the medical evidence, financial losses, the reasonable value of the claim and the prospects of the various heads of damages, the court found that the settlement was in the claimant’s best interests.
4. Under CPR Part 21.10(4) and Parts 41.6–41.7, the court found that a lump sum was the form of award that best met the claimant’s needs, taking account of the relevant factors and the advice received. The settlement was therefore approved under CPR Part 21.10.
5. An order was made under CPR Part 21.12 concerning costs and expenses incurred on the claimant’s behalf.