MHE v Wye Valley NHS Trust

Approval of a settlement for a child or protected party requires an independent judicial check on the settlement’s propriety. The court must decide whether the compromise serves the protected person’s best interests, having regard to justice and the overriding objective. The claimant’s legal representatives should provide advice addressing recoverable loss, litigation risks, and evidential strengths and weaknesses. Where damages include periodical payments, the court must assess whether the proposed structure best meets the claimant’s needs, considering all the circumstances and the factors in the relevant practice direction. An anonymity order may be made where the claimant’s Article 8 ECHR privacy rights significantly outweigh the Article 10 ECHR rights of the press and public.

The claimant, a child and protected party lacking capacity, brought a personal injury claim against the defendant NHS trust arising from brain injury sustained during her birth. Liability had been admitted and judgment entered by consent in 2012, leaving quantum to be assessed. Following extensive expert evidence and preparation for an eight-day damages trial, the parties reached a settlement comprising a lump sum and lifetime periodical payments.

The court was asked to approve the compromise under the court’s inherent jurisdiction and CPR 21.10(1), and to consider the appropriateness of the periodical-payment structure under CPR 41.7. The court also considered anonymity and the central question whether the settlement was in the claimant’s best interests.

1. Approval. The court approved the settlement under CPR 21.10. Approval engages judicial judgment. The court must act in the interests of justice and in the best interests of the child or protected party, having regard to the overriding objective. The purpose of the hearing is to impose an external check on the propriety of the settlement, applying the approach identified in Dunhill v Burgin [2014] UKSC 18 at [20].
2. The court should be provided with an opinion from the claimant’s legal representatives on the merits of the compromise. That advice should address the recoverable loss, the risks and uncertainties of litigation, and the strengths and weaknesses of the evidence.
3. Periodical payments. Where a proposed award includes periodical payments, the court must consider all the circumstances and the form of award that best meets the claimant’s needs, having regard to the factors identified in CPR 41.7, Part 41 and Practice Direction 41BD. The proposed structure was appropriate for the claimant’s anticipated lifetime needs.
4. The court was satisfied that the settlement level and structure were sensible and in the claimant’s best interests. The gross lump sum was £5,557,500, reduced by interim payments to a net lump sum of £4,907,500, with indexed periodical payments increasing over time and continuing for life.
5. Anonymity. The claimant’s privacy and private-life interests under Article 8 ECHR significantly outweighed the press and public’s freedom of expression under Article 10 ECHR. An anonymity order was therefore made in accordance with JX MX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96.

This was a first-instance approval hearing. Liability had been admitted, and judgment was entered by consent on 10 May 2012 for damages to be assessed. Proceedings were stayed during the claimant’s minority before the quantum settlement was submitted for approval.