CTQ v King’s College Hospital NHS Foundation Trust

The court may invoke its inherent jurisdiction where there is a real and credible doubt about a claimant’s capacity, even without a formal finding that the claimant lacks capacity. This may avoid an unnecessary and disproportionate capacity trial.

Once invoked, the court may treat the claimant as if a protected party, scrutinise and approve the settlement under Civil Procedure Rules 1998, and validate procedural steps taken without a litigation friend. Approval requires an external check on the settlement’s propriety and must serve the claimant’s best interests and the overriding objective.

Anonymity requires necessity, balancing open justice and freedom of expression against privacy and protection of the claimant and family.

The claimant suffered severe brain injury following cardiac arrest during childbirth. Liability was admitted and the claim proceeded principally on quantum. A settlement comprising a lump sum and periodical payments was agreed before the scheduled damages trial.

The claimant had no formal finding of incapacity and was not a protected party, but expert evidence raised concerns about her ability to litigate and manage a substantial award. The court therefore considered whether to invoke its inherent jurisdiction, approve the compromise as if the claimant were a protected party, and validate steps taken without a litigation friend.

The court also considered whether the claimant and her daughter should be anonymised, and whether the proposed settlement was in the claimant’s best interests.

1. Anonymity. The court granted an anonymity order under the relevant provisions of the Civil Procedure Rules 1998 and section 11 of the Contempt of Court Act 1981. Applying the guidance in JXMX v Dartford & Gravesham NHS Trust [2015] EWCA Civ 96, the court recognised the fundamental importance of open justice and the press’s legitimate interest in reporting proceedings. The necessity test was nevertheless satisfied because of the claimant’s capacity concerns and the need to protect her family. Article 8 rights outweighed Article 10 rights on the facts.
2. Inherent jurisdiction. The court found on the balance of probabilities that a real and credible doubt remained about the claimant’s capacity to conduct the litigation and manage the proposed award without significant assistance. Following Coles v Perfect [2013] EWHC 1955 (QB) and Grimshaw v Hudson [2021] EWHC 425 (QB), a sufficient potential concern about capacity justified invoking the inherent jurisdiction. A dedicated capacity trial would be unnecessary and disproportionate.
3. Effect of the jurisdiction. The court could treat the claimant as if she were a protected party. It could therefore conduct the same supervisory approval exercise required by rule 21.10 of the Civil Procedure Rules 1998. The approval would remain effective if the claimant were later found to have lacked capacity at the relevant time. The court also ordered that steps taken in the proceedings were valid despite the absence of a litigation friend.
4. Settlement approval. Approval hearings provide an external check on the propriety of a settlement, as explained in Dunhill v Burgin [2014] UKSC 18. The court considered the legal advice, expert evidence, litigation risks, recoverable loss and proposed payment structure. It was satisfied that the lump sum and periodical payments were sensible and in the claimant’s best interests. The settlement was approved under rule 21.10.
5. The periodical-payment structure was considered under rule 41.7 of the Civil Procedure Rules 1998, with regard to the claimant’s needs and the relevant factors in Part 41 and Practice Direction 41BD. The claim was thereby brought to an end, subject to liberty to apply.