G W –v- B W & T A –v- R P [2011] EW Misc 10 (CC)

Posted on Friday, July 22nd, 2011

Two low value cases involving Gillick/Fraser competent infants. The rules did not require the Court to hold a hearing to approve an infant settlement. Such a hearing could be avoided by filing, for example, a statement as to the time taken for recovery in the case of a minor neck, back or shoulder injury, or, in the case of trivial scarring, a photograph. The Court must also deal with the damages and appropriate proposals should be filed. The Special Investment Account should be a last resort because it loses money due to the disparity between the interest rate paid and inflation. In most cases under £5,000 it would be appropriate to pay the whole of the damages directly to the litigation friend. Counsel’s fees were only recoverable where some exceptional feature of the case made his instruction necessary within the meaning of CPR 45.10(2)(c)(i). Counsel’s instruction was not necessary in every case simply because an infant was involved. Any other interpretation would allow a solicitor to circumvent the predictable costs regime and increase his own profit costs at D’s expense. Although the point was not taken, the test of necessity applied to any instruction of Counsel, not simply a fee for attending an infant approval hearing. Given the weight of authorities at Circuit Judge level rejecting C’s arguments, it was clear they had been “forum shopping”, contrary to their duties under CPR 1.3. No costs order was requested in W, therefore Counsel’s fee for the infant approval hearing was disallowed. In A, as well as disallowing Counsel’s fee, the conduct of C’s solicitors was improper and unreasonable so as to justify an order for costs against them personally under CPR 44.14. Permission to appeal “cheerfully” given. Any appeal to be direct to the Court of Appeal under CPR 52.14.


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