Child protection in Personal Injury cases

Dated:   

The court of appeal recently ruled that legal costs were not recoverable on minor cases achieving injury settlement under £1000.00.

The decision in the case of Aurangzeb v Walker favoured the Defendants argument that the case of a minor under 18 years of age should be settled under the “small claims track”, which did not entitle them to recover legal costs.

This basically means that if a child's injury settlement is below £1,000.00 a solicitor can not recover their costs under the "small claims track".

This approach assumes that the litigation friend (usually a parent or guardian of the child) has easy access to the justice system when it comes to making a claim for their child. Whilst running a small claim can be fairly self-explanatory for an adult, the case is quite different when it comes to children.

Firstly, the child must be medically examined by an independent expert, which (hypothetically) in line with the pre-action protocols should be an expert which is agreed by the third party insurers.

Secondly, the opinion of a barrister must be obtained to determine the level of damages appropriate to compensate the injury. How and where does the parent begin locating a chambers and arranging for the recovery of their fee?

Already we are in territory which will most likely be totally alien to the layperson, who is probably more concerned for the wellbeing and overall recovery of their child, than focussing on how to deal with the legal process. In addition the parent may themselves be injured, as in the majority of road traffic accident cases where a child is injured it is the parent’s vehicle they were travelling in at the time of the accident. Add distraction and discomfort to the daily busy life of a parent, and the child’s claim may soon be put aside.

The vital missing link here is the solicitor – who provides invaluable advice and guidance in the overall conduct of the case, in addition to the arrangement of the medical examination and the advice of a barrister, so that the litigation friend does not have to concern themselves with such matters.

Furthermore the approach assumes that because the injury is worth less in value, the minor isn’t entitled to the same duty of care or protection.

In our current climate of expert availability at the click of a button, it seems absurd to ask laypeople to understand the legal process and conduct themselves in a legal manner without assistance. Essentially the implication of the predictive costs regime brought into force in 2003 was to limit legal fees, so that the layperson could have the benefit of legal advice without being concerned that the fees were extortionate and by extension, unrecoverable.

The recent decision clearly doesn’t protect the general public and indeed the children who are its main subject, and more concerning is that it seems to favour limiting legal costs to be paid by the Defendant insurance companies. The protection of an insurance company rather than a child seems questionable.

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