NKX v Barts Health NHS Trust

When approving a settlement for an incapacitous claimant under Civil Procedure Rules 1998 Part 21, the court must protect the claimant’s interests throughout the expected lifetime of the settlement. A periodical payments order may require proof of life, but the requirement should state objectively what evidence may be provided and when it must be supplied. A standard form approved in Thompstone v Tameside does not prevent the court from tailoring provisions where greater protection and clarity are required.

The court had previously approved the proposed settlement of a clinical negligence claim involving an incapacitous claimant. The settlement included a periodical payments order in the standard form associated with Thompstone v Tameside, including a proof of life clause allowing the NHSLA to require evidence in a form reasonably satisfactory to it.

The court considered whether that clause adequately protected the claimant, particularly because it specified neither the form or provider of evidence nor the timing or frequency of requests. The court amended the clause and then refused the defendant’s application for permission to appeal.

1. The court’s function under Civil Procedure Rules 1998 Part 21 is to protect an incapacitous claimant when approving the proposed settlement, including the terms of a periodical payments order.
2. The need for proof of life is legitimate because periodical payments terminate on the claimant’s death. However, a clause giving the NHSLA discretion to require evidence in a form reasonably satisfactory to it did not provide sufficient future protection. It lacked objective standards as to the evidence, its provider, and the timing and frequency of requests.
3. The court was entitled to tailor the clause. It required reasonable evidence of life to be provided by 15 November each year. Evidence could be supplied by a deputy, case manager, litigation friend, GP, treating clinician, or another person considered appropriate by the NHSLA.
4. The standard periodical payments order form associated with Thompstone v Tameside had stood the test of time, but did not prevent review and adaptation where vulnerable claimants required clearer protection. The claimant’s neutral position did not remove the court’s protective responsibility.
5. Permission to appeal was refused. The asserted need to review internal procedures or amend the NHSLA data form did not justify an appeal, and the specified date promoted clarity for both parties.

The judgment was a first-instance approval decision. The defendant applied to the High Court for permission to appeal the amendment to the periodical payments order, but permission was refused.