England and Wales High Court (King's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		2 February 2024

............................. DEXTER DIAS KC

Dexter Dias KC:

(Sitting as a Deputy High Court Judge)

1. This is the judgment of the court.
2. This is an application for the court to give its approval, pursuant to the court's inherent jurisdiction, of a settlement of a personal injury claim.
3. The claimant is now 23 years old and is a protected party (CPR 21.2(1)). There is an anonymity order in place. Therefore, the claimant will be known as "GJC". He appears by his litigation friend, who is his father, and who shall be known as "PKR". The claimant is represented by Mr Stephenson of counsel. The defendant is Stephen John Walker. The defendant is represented by Mr Bagot KC.
4. Although approval hearings are part of the court's exercise of its protective jurisdiction, they remain within the ambit of fundamental rights under the European Convention on Human Rights. Therefore, while acknowledging the vital importance of the open justice principle and the "public watchdog" function of the press (Thoma v Luxembourg [2001] ECHR 240 at [5]), I judge that the Article 8 ECHR right to privacy and private life imperatives belonging to the claimant here significantly outweigh the Article 10 ECHR freedom of expression rights of the press and public. I am satisfied that the public interest in seeing that justice is done can be met without the personal details of the claimant being identified. That is why I have granted an anonymity order in accordance with JX MX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96. The court offered the opportunity for any contrary submissions from the press. There were none. The form of the order conforms with the latest APIL / PIBA template order.

Background

5. Almost exactly five years ago, the claimant was seriously injured in a road traffic accident. He was a backseat passenger in car that was struck by a vehicle driven by the defendant Mr Walker. The claimant sustained a severe brain injury as a result.
6. Following the claimant's claim form issued on 8 March 2021, there was a subsequent full admission of liability by the defendant. Judgment was entered on 15 June 2022 by Master Thornett. The case thus resolved into a question of quantum of damages. It was set down for a trial on damages due to start on 29 January 2024 – today's date. However, there was a Joint Settlement Meeting ("JSM") on 15 December 2023 when the parties reached a compromise. It is that compromise that is the subject of today's approval hearing.

Approval

7. I am grateful to both legal teams for the great care with which they have prepared this case and the obvious sensitivity with which they have presented it.
8. Today, Mr Bagot KC most responsibly explained how the defendant is very glad to reach a mutually satisfactory agreement in the case without the need for trial, and recognises the devotion of the claimant's family.
9. The purpose of today's hearing is for the court to consider whether the proposed settlement of damages agreed between parties is in the best interests of the claimant. The court is required to approve the terms of settlement in this case as the claimant is a protected party. It is an elementary proposition that court approval engages questions of judgment. It must act in the interests of justice and the best interests of the protected person and have regard to the overriding objective. As stated by Lady Hale in Dunhill v Burgin [2014] UKSC 18 at [20], the purpose of approval hearings in accordance with CPR 21.10(1) is

"to impose an external check on the propriety of the settlement."

10. Part 21 of the CPR includes rule 21.10. Its subheading is "Compromise etc. by or on behalf of a child or protected party". The rule provides insofar as it is material:

21.10

(1) Where a claim is made –

(a) by or on behalf of a child or protected party;

no settlement, compromise or payment (including any voluntary interim payment) and no acceptance of money paid into court shall be valid, so far as it relates to the claim by, on behalf of or against the child or protected party, without the approval of the court.

11. A compromise or settlement is not binding on the parties until it has been approved by order of the court (Drinkall v Whitwood [2003] EWCA Civ 1547, applying Dietz v Lennig Chemicals Ltd [1969] 1 A.C. 170). In a case where the court's approval under the inherent jurisdiction is sought, the court should be provided with an opinion from the claimant's legal representatives on the merits of the settlement or compromise and any financial advice.
12. Mr Stephenson's confidential advice is dated 15 January 2024 and is an invaluable and comprehensive document. It sets out with great clarity and precision why the settlement is considered by the claimant's legal team to be appropriate, by reference to an assessment of the quantum of recoverable loss, weighing the risks and uncertainties of litigation and the strengths and weaknesses of the evidence.
13. I have also read the detailed and complex expert reports that speak to this case. These include a neurology joint report dated 9 September 2023; neuropsychiatry joint report dated 13 September 2023; neuropsychology joint report dated 14 September 2023 and care experts joint report dated 27 November 2023.
14. The structure of the settlement is as follows:

Gross lump sum		£4.75 million (including figure for pain, suffering and loss of amenity and associated interest of £161,700)
	Less: Interim payments	£-575,000
Total:
Net lump sum:		£4,175,000

15. The defendant's liability under the Social Security (Recovery of Benefits) Act 1997 to the Compensation Recovery Unit is nil and a certificate to that effect is included in the hearing bundle.
16. The court has read the confidential report from the Independent Financial Adviser, Steven Balmer (annexed to the confidential advice and dated 11 January 2024). It confirms the advantages of a lump sum that will provide for the claimant's needs over a life that the experts agree is likely to extend over many years.
17. I am satisfied that I have been able to perform the required Dunhill propriety check. I agree that the both the settlement level and its structure are sensible from the claimant's point of view. I find that this settlement is in the claimant's best interests. On that basis I approve the settlement under CPR 21.10.
18. To conclude, I would like to say something about the claimant's life, before and after the accident.
19. At the time he was seriously injured, the claimant was studying in his chosen field, sports coaching and had secured a place at university. He had been volunteering his time to coach very young children and help their participation in the sport he loves. He comes from what Mr Stephenson aptly calls a "solid, hardworking and sensible family". His father works in financial services and mother in the education sector.
20. Due to the accident, the claimant has suffered substantial hemiparesis, a form of muscle weakness linked to his brain injury. His brain injury is moderate/severe, being more severe than moderate. There is an enduring cognitive legacy and the claimant has cognitive impairments caused by the brain injury. He has a major neurocognitive disorder and an elevated risk of epilepsy for 20 years.
21. He experiences very significantly slowed processing speed, moderate attentional problems, particularly with distraction and complex attention, moderate to severe memory problems, difficulties with executive function, particularly planning, organising, complex problem solving, cognitive communication difficulties, slowed visual scanning, and significant and rapid fatigue with work-limiting consequences.
22. I have read the detailed and very affecting statements of the claimant's parents. All this has unquestionably been a tremendous strain on the claimant and his family. Their son, as his father movingly puts it, feels sometimes "quite lonely of an evening and tends to go over things again and again in his head." Perhaps inevitably, they worry about how vulnerable their son is and the risk of his being exploited. As his father writes,

"There is no doubt that the accident has completely changed the trajectory of his life. He has worked incredible hard, however, to narrow that gap as much as possible. We are very proud of and encouraged by his determination and progress."

23. The court conveys to the claimant and his family that it appreciates that no amount of money can turn back the clock and put their family in the position they would have been in had the injury to the claimant not occurred. Money cannot do that. It is simply the best we can do. A proxy for the quantification of the pain and suffering, heartbreak and anxiety that they all continue to experience in many different ways. But I do hope that the end of these proceedings will be a relief and this long-awaited financial settlement will make life a little easier and more secure. The court also would like to recognise the constant dedication and sacrifice of the claimant's parents which has immeasurably supported and advanced his recovery. But little would be achieved without the courage and determination of the claimant himself, a person whose life was completely upended through no fault of his own. As he told the court very powerfully today, although he may not be able to pursue the career in sports he had hoped for, he believes that "two plus two is not the only way to get to four" and he will find another way to use his talents to make a contribution to children's love of sport. This does him great credit.
24. I have emphasised to the claimant's family that this judgment will be published to the National Archives so that a copy will always be available to the claimant - this is his case. I wish his family, and the claimant especially, the very best for the future.