Nicola Bayless & Ors v Norfolk and Norwich University Hospitals NHS Foundation Trust

Where a settlement includes claims brought on behalf of children, court approval is required before it is binding in relation to those claims. A lump-sum settlement cannot ordinarily be severed so as to bind an adult claimant’s claim alone. A defendant seeking to strike out a later claim under the rule in Henderson v Henderson must show that allowing it to proceed would be oppressive or manifestly unfair. Such cases are rare. The court should also consider whether the earlier settlement covered the later claim. Where the defendant ought, on proper investigation, to have recognised that its application was hopeless, it should pay the claimant’s costs.

The claim arose from the death of Stephen Bayless following admitted clinical negligence. Nicola Bayless and her two children had previously accepted a lump-sum Part 36 offer intended to settle dependency and related claims. The settlement was not approved by the court, despite including claims brought on behalf of the children.

Nicola Bayless later brought a secondary-victim claim for psychiatric injury after witnessing her husband’s death. The Trust applied to strike out that claim, arguing that it had been compromised by the earlier settlement or, alternatively, that the second action was an abuse under the rule in Henderson v Henderson. The Trust withdrew the application after discovering the absence of court approval. The issue was the proper order for the costs of the withdrawn application.

1. The Trust was the unsuccessful party and was ordered to pay Mrs Bayless’s costs of the withdrawn application on the standard basis.
2. The acceptance of the Part 36 offer did not validly settle the claims made partly on behalf of the children because the settlement had not been approved under rule 21.10 of the Civil Procedure Rules 1998. The lump-sum settlement could not be severed so as to constitute a valid settlement of Mrs Bayless’s personal claim alone.
3. The absence of approval created risks for both sides. The Trust had paid £340,000 plus costs without obtaining a good discharge. Any approval would have to address the youngest child’s dependency claim at its 2023 value.
4. On proper investigation, the Trust should have recognised from its own files that the settlement had not been approved. The strike-out application was therefore always hopeless.
5. Even if the settlement had been approved, its proper construction covered only the claims advanced in the pre-action correspondence and schedule of loss. It did not compromise Mrs Bayless’s psychiatric-injury claim, which had not then been asserted.
6. The rule in Henderson v Henderson imposes a heavy burden on a defendant seeking to strike out a later claim. Abuse requires it to be oppressive or manifestly unfair to allow the second action to proceed, and findings of abuse are rare. On the evidence, Mrs Bayless’s claim was unlikely to have been struck out because she was unaware of the injury when settling and the later claim was not oppressive.