ERE v East Suffolk and North Essex NHS Foundation Trust

When approving a settlement for a protected party, the court must decide whether the proposed terms are in that party’s best interests and consistent with the interests of justice, while having regard to the overriding objective. The assessment must take account of litigation risks, disputed evidence and the uncertainty of future loss. A combination of a lump sum and periodical payments may be approved where it best meets the protected party’s needs. The court must also be satisfied that the procedural requirements governing periodical payments have been met and that continuity of payment is reasonably secure under the Damages Act 1996.

The claimant brought a personal injury claim arising from alleged negligent clinical care in August 2015, which resulted in cardiac arrest and severe hypoxic brain damage. Liability had been agreed at 75% of the full value of the claim, and judgment was entered by consent in 2020, leaving quantum to be assessed.

Before the quantum trial, the parties agreed a settlement comprising a lump sum, periodical payments for future care and case management, and a payment to the claimant’s parents for gratuitous care and expenses. The claimant was a protected party and the court therefore had to determine whether the proposed settlement and its structure were in her best interests.

1. The application for approval of the settlement was granted. The court was required by Civil Procedure Rules 1998, rules 21.10 and 21.2(1), to act in the best interests of the protected party and in the interests of justice, having regard to the overriding objective.
2. The court considered the litigation risks and the significant disputes remaining on quantum. These included the claimant’s prognosis, her neuropsychiatric, neuropsychological and physical condition, and the future extent of care and support required. In those circumstances, the agreed settlement was in the claimant’s best interests.
3. The proposed structure, consisting of a lump sum for general damages, interest, past losses and other future losses, together with periodical payments for future care and case management, best met the claimant’s needs. The court approved the specified annual payments, indexed to ASHE 6115 at the 80th centile.
4. The requirements of Civil Procedure Rules 1998, rules 41.7–41.9 and Practice Direction 41B were satisfied. The court was also satisfied that continuity of payment was reasonably secure for the purposes of section 2(3) and section 2(4)(c) of the Damages Act 1996.
5. The court approved payment of £124,631.13 to the claimant’s parents for past gratuitous care and other expenses under rule 21.12 of the Civil Procedure Rules 1998.