XX v Barts Health Trust

At an approval hearing for a protected party, the court must conduct an external check on the propriety of the proposed settlement. It must exercise judgment in the interests of justice and the protected person, having regard to the overriding objective. Approval depends on whether the settlement is fair, appropriate and in the protected person’s best interests.

Anonymity in such proceedings requires necessity-based justification, notwithstanding the principle of open justice. The court should normally give the press an opportunity to make submissions before restricting publication.

This was an approval hearing concerning a clinical negligence claim brought for XX, a protected party who had suffered severe hypoxic-ischaemic brain injury and cerebral palsy following his birth.

Liability had previously been compromised at 90 per cent of damages to be assessed on a full-liability basis. The parties later agreed damages, comprising a substantial lump sum and periodical payments, subject to court approval. The court had to determine whether the settlement was in XX’s best interests and whether anonymity should continue.

1. The court continued the anonymity order. Approval hearings fall within the principle of open justice, and any restriction requires necessity. Anonymity may nevertheless protect the privacy rights of children and protected parties. The court considered the individual facts, gave the press an opportunity to make submissions, and found that necessity was established. XX and his mother were therefore to be referred to by initials.
2. Under CPR 21.10(1), a settlement concerning a protected party is invalid without court approval. The approval jurisdiction requires the court to exercise judgment in the interests of justice and the protected person, while having regard to the overriding objective. As explained by Lady Hale in Dunhill v Burgin [2014] UKSC 18, the purpose is to impose an external check on the propriety of the settlement.
3. The court reviewed the confidential legal advice, expert evidence, the risks and uncertainties of litigation, the assessment of recoverable loss, and the proposed financial structure. It concluded that the settlement was suitable, fair and appropriate. The combination of a £6.5 million lump sum and periodical payments provided the least investment risk and was in XX’s best interests.
4. The settlement was approved under CPR 21.10.