J. A. Clyde-Smith, Esq., Commissioner and Jurats Kerley and Crill.
V (as Administratrix of the Estate of A)
The Minister for Health and Social Services
Advocate P. G. Nicholls for the Plaintiff.
Advocate D. J. Benest for the Defendant.
1. On 28th May, 2014, the Court approved the terms of a settlement reached between the parties to these proceedings and we now set out our reasons.
2. The plaintiff, V commenced these proceedings by Order of Justice dated 27th February, 2012, in her capacity as administratrix of the estate of the late Mr A ("the deceased"). The action was brought predominantly for the benefit of the minor child of the plaintiff and the deceased, B("B") who was born on 15th November, 2005, under the Customary Law Amendment (Jersey) Law 1948 ("the 1948 Law") and the Fatal Accidents (Jersey) Law 1962 ("the 1962 Law").
3. In summary, the plaintiff alleged that the medical staff at the Accident and Emergency Department of the Jersey General Hospital (for whose acts or omissions the defendant as the Minister for Health and Social Services was responsible) failed to correctly diagnose the deceased as suffering from a pulmonary embolism secondary to deep vein thrombosis during the course of two attendances at the Accident and Emergency Department on 8th and 9th March, 2009. It was further alleged that the failure properly to diagnose the deceased on those occasions led to his untimely death on 10th March, 2009.
4. The claim on behalf of the estate under the 1948 Law was comparatively modest, covering pain, suffering and loss of amenity, loss of expectation of life and funeral expenses. The largest claim was for B's dependency under the 1962 Law.
5. The claim was compromised by the parties during the course of a joint settlement meeting which took place on 7th May, 2014. The defendant compromised the claim making no admissions of liability. The terms of the settlement were set out in a confidential schedule.
6. By virtue of Clause 2 of the terms of settlement, the parties agreed that the settlement monies would be apportioned as follows:-
(i) 5.6% in respect of the claims brought under the 1948 Law; and
(ii) 94.6% in respect of the claims brought under the 1962 Law, all of which sum is for the benefit of B.
7. Unlike its English equivalent (the Fatal Accidents Act 1976), the 1962 Law does not allow for claims to be brought for the benefit of unmarried partners, albeit that they may have been cohabiting with a deceased person at the time of death; we understand the plaintiff and the deceased had been cohabiting for some 8 years. As such, the plaintiff was prevented from deriving any benefit from a claim under the 1962 Law, by virtue of the fact that she and the deceased were unmarried at the time of his death. The plaintiff's claim under the 1962 Law was therefore brought solely for the benefit of the minor child and the deceased's only dependant, B, under Article 2(2)(c) of the 1962 Law.
8. Article 3 of the 1962 Law provides that only one action shall lie under that Law in respect of the death of a deceased person and that in the first instance, that claim is to be brought by the executrix or administratrix as the case may be of a deceased's estate.
9. Whilst Article 3 confers upon the administratrix a right to commence a claim on behalf of the dependent children of a deceased person, it does not expressly confer upon the administratrix the conclusive power to compromise that claim on their behalf. That leaves open the possibility of a minor dependant making complaint as to the propriety of the settlement on reaching majority.
10. B, a minor, is equally unable to compromise the claim, or to provide a valid receipt in respect of monies to be paid by the defendant in respect of the 1962 Law claim.
11. In general under Jersey law as under English law, a contract entered into by a minor is void ab initio. Pothier, Traité des Obligations 1761, Part 1, Chapter 1, Para 128, page 146 noted that:-
"Il est clair que les fous, les insensés et enfants ne sont pas capables de contracter les obligations qui naissent des délits ou des quasi délits, ni de contracter par eux-mêmes celles qui naissent des contrâts puisqu'ils ne sont pas capables de consentement sans lequel il ne peut y avoir ni conventions ni délit ou quasi délit."
12. However, as in most legal systems, an exception is made to this rule in the case of everyday contracts. In the Civil Commissioners' Report 1861 at page xxx, it was noted that contracts for "necessaries" and beneficial employment can be enforced against a minor. This has been expressly provided for in the Supply of Goods and Services (Jersey) Law 2009 (Article 12).
13. The usual course in England and Wales in such circumstances is to seek the Court's approval to any settlement, including as to apportionment (this not being an issue in this case, there being only one dependant). This appears to have been the course followed by the Court in Jersey on numerous occasions, but there is no case setting out the requirements for such approval.
14. Advocate Benest, for the defendant, supported by Advocate Nicholls for the plaintiff, submitted that the Court has an inherent jurisdiction to approve the terms of the settlement in respect of a person who lacks capacity and should exercise that jurisdiction for obvious policy reasons. That is to ensure that any settlement is valid, final and binding.
15. The first question that arises is whether the administratrix, in her capacity as such, can herself validly enter into a compromise with the defendant that is valid, final and binding. The role of an administratrix acting under the Fatal Accidents Acts 1846-1908 - the precursor to the UK Fatal Accidents Act 1976, which is couched in equivalent terms to the Fatal Accidents Law 1962 was considered in the case of Jeffrey v Kent County Council  1 WLR 927. In that case, a widow, as administratrix of her deceased husband, agreed to accept from the defendants the sum of £4,350 in respect of his death, divided as to £3,650 in respect of her own loss and £300 and £400 respectively for her two infant children. Thereafter, she issued a writ against the defendants claiming damages under the Fatal Accidents Acts1846 - 1908 and before she had received a defence she issued a summons asking for a stay of proceedings on terms that the defendants paid into the County Court in satisfaction of the claim the sum of £4,350 apportioned as agreed. The Master, being dissatisfied with the amounts, including the widow's portion, which had been agreed, refused to agree the terms of settlement. The defendants appealed and it was held:-
"that although, if the widow had agreed to take a sum (not as part of a lump sum, but individually), as being proportionate to the inquiry suffered by her, she would be bound by that agreement, in the present case the agreement, since it was for a lump sum to cover both her claim and that of the infants, bound nobody and was void."
16. In his judgment Paull J said this at page 931 in relation to the role of the administratrix:-
"It is well settled law that the administrator in acting under the Fatal Accidents Acts, 1846-1908, is not acting in his normal capacity as administrator. He is not collecting assets to be distributed later. As long ago as 1863 in Pym v Great Northern Rw. Co., it was held that the remedy given by the statute is to individuals and not to a class and Erie CJ in his judgment said:-
'The principle which governs these cases appears to us to be to consider whether there was evidence of a reasonable probability of pecuniary benefit to the parties if the death of the deceased had not occurred.'
Thus treating (as indeed did Lord Macmillan) the dependants in the action before the court (which was brought by the administratrix in each action) as the parties in whom the right against the defendants lay. Indeed this must be right. '...the damages' said Lord Atkin in Avery's case, 'constitute a legal debt due to each of the persons to whom the jury have awarded damages ... The quantum of damages .... are not a proportion of a limited sum.'
It was in Avery's case also that it was pointed out by Lord Atkin that there was no need for all the dependants to join in the action and that if they did not the defendants could not pray in aid the absence of some of the dependants in order to reduce the sum payable to such of the dependants as had joined in the action. Lord Atkin made it clear that the claim was the claim of the dependants and not of the administrator and Lord Macmillan pointed out that if for any reason any dependant did not join in or was not named in the action he had lost his right to share in the amount awarded, but could not bring a second action.
I apply these principles to a settlement made before any action is brought. If the claim is not the claim of the administrator, but the claim of each dependant separately, I do not see how the administrator has power to accept a sum of money in settlement of the whole of the defendants' liability unless each of those persons who has a claim has given him authority so to do. He is certainly not given any such power by the statute. In the case of an infant, of course, the infant cannot give any authority which is binding upon the infant, and apart from that it is to be remembered that the interest of the administrator may be in conflict with the interest of the infant if the administrator is a dependant."
17. At page 929 Paull J set out his conclusions as to the legal position when the widow, as administratrix enters into an agreement with the defendants:-
"The conclusion to which I have come is that where the administrator enters into an agreement with the defendant to take a lump sum to cover all the dependants, that agreement is not a valid agreement unless (a) each of the dependants who is sui juris and desires to claim has approved thereof and (b) the court has sanctioned the agreement as being one for the benefit of each of the dependants who are infants. The court has no power to sanction an agreement unless (a) is fulfilled as well as (b)."
18. In our view the administratrix in this case, acting under the 1962 Law, is in the same position and has no power to accept the terms of the settlement, unless given authority on behalf of the person who has the claim, namely B, who as a minor cannot give that authority.
19. The next question that arises is whether this Court has the power under its inherent jurisdiction to sanction the settlement. Jeffrey-v-Kent is helpful in that it reflects the position at English common law where the English court, exercising its inherent jurisdiction, was able to sanction a settlement on behalf of the minor and before it was incorporated into Order 80 Rules 10 and 11 of the Rules of the Supreme Court and now Rule 21.10(1) of the Civil Procedure Rules 1998.
20. In Black v Yates  2 QB 526, Potter J accepted that the public policy which underlay the position at common law and as reflected in the Rules of the Supreme Court Order 80 Rules 10 and 11:-
"is a policy to protect minors from any lack of skill or experience of their legal advisers which might lead to settlement of a money claim for less than it is worth, and to provide means by which a defendant may obtain a valid discharge from a minor's claim ...."
21. More recently, in Rebecca Coles v David Perfect & Others  EWHC 1955 QB, the parties asked the court to approve a settlement in a personal injuries claim where the evidence as to the adult claimant's capacity (who was not acting through a litigation friend) was equivocal. It was asserted by counsel on behalf of the claimant that the court had an inherent jurisdiction to approve the settlement:-
"He submits on the basis of the notes in the White Book at Volume 2, page 2442 that the court has inherent jurisdiction 'to the doing by the court of acts which it needs must have power to do in order to maintain its character as a Court of Justice'. He tells me that he has been involved in other cases where there has been a doubt as to the capacity of the claimant. In those cases the judges of the Queen's Bench Division have nevertheless approved the settlement. Mr Ullstein submits that that is an appropriate exercise of the court's inherent power because it achieves not only finality in litigation, but also protects the interests of the claimant."
22. Teare J concluded as follows:-
"12. I am reluctant to order that there should be a trial of the issue of capacity in circumstances where neither party is alleging incapacity, but where both parties are anxious to secure the approval of the court to the settlement in order that the parties can be assured that the settlement is valid, final and binding. To require a trial of the issue of capacity in those circumstances would be, as submitted by Mr Ullstein, a disproportionate order to make because it would be immensely costly.
13. I am satisfied, firstly, that the court has an inherent jurisdiction to approve the settlement. I am also satisfied that the concern which has been expressed on behalf of the defendant's insurers, namely that approval of the court in the circumstances where the claimant has not been declared to lack capacity and is only a protected party is founded. The rule simply requires that there must be approval of the court with order that a settlement of a claim but by a protected party is valid. It seems to me that if the court approves the settlement and if hereafter it should be determined that the claimant lacks capacity, that the effect of CPR 21 rule 10 will not be that the settlement is invalid but that it is valid because it will have obtained the approval of the court."
23. In Crociani v Crociani  JCA 095, Beloff J said this at paragraph 13 in relation to the use of the Court's inherent jurisdiction (to order an interim costs payment):-
"12. The Royal Court and the Court of Appeal have an inherent jurisdiction to regulate their own practice and procedure concurrent with rules of court, but not inconsistent with them. C Le Masurier Ltd v Alker  JLR 123 ("Le Masurier") (at pp 62 and 63); Finance & Economics Committee v Bastion Offshore trust Co Ltd  JLR 370 ("FEC") at pp 66-68) and Mayo Associates SA v Cantrade Private Bank Switzerland  JLR 173 ("Mayo") (at pp 90-92).
13. I would not, however, deploy the concept of inherent jurisdiction of the Court to justify my conclusion that the power to order an interim costs payment exists in Jersey. In Connelly v DPP  AC 1254 Lord Devlin said classically:-
'The judges of the High Court have in their inherent jurisdiction both in civil and in criminal matters power (subject of course to any statutory rules) to make and enforce rules of practice in order to ensure that the Court's process is used fairly and conveniently by both sides.' (p 1347)
Whereas I have found, the statutory rules themselves provide the relevant power, resort to the inherent jurisdiction is not required, even if available. Moreover it can never be the source of orders which could not otherwise be made. In Mayo the court said:-
'the conclusion that it is fair and just to order that a thing be done does not determine whether there is inherent jurisdiction to order it.' (p 187)
The utilisation of an inherent jurisdiction is better reserved within its appropriate but not well defined limits (ditto p 187) for circumstances not embraced by legislation primary or secondary."
24. The scope of the Court's inherent jurisdiction was considered by Smith J in Mayo v Cantrade  JLR 173:-
"In our view, the vital clue to the nature of inherent jurisdiction in its procedural setting, and revealed in the two passages quoted, is necessary. The court has a particular procedural power because it has to have it to be a court in any meaningful sense. On this basis, the power to require the attendance of witnesses, whether to testify or to produce documents, the power to control abuse of the process of the court, the power to dismiss claims for want of prosecution, the power to issue practice directions, the power to decide who may or may not appear before the court, the power to correct errors in its own orders and many other powers may all be recognized as derived from a single pool, not of powers but of power drawn upon as necessity dictates.
It will be observed that this approach is antithetical to a definition of inherent jurisdiction based simply on fairness or by reference to what is perceived in a particular situation to be just. If inherent jurisdiction exists to enable a court to order that a thing be done, fairness and justice will obviously be major factors to be taken into account when the court is deciding whether or not to exercise its direction to so order; but the conclusion that it would be fair or just to order that that thing be done does not determine whether there is inherent jurisdiction to order it."
25. The circumstances here are not embraced by legislation primary or secondary and in our view it is necessary for the Court to exercise the power of approving the settlement reached between the parties for the reasons put forward by Advocate Benest, namely that such approval:-
(i) ensures that settlements are reached in the best interests of the dependant party;
(ii) provides the defendant with a binding discharge in respect of the claim, thereby providing finality in respect of litigation; and
(iii) provides a finality and protection to the party bringing the claim on the dependant's behalf, in that it prevents a dependant from bringing a claim against his or her guardian upon reaching majority on the basis that the settlement was somehow inadequate.
26. Without such a power, claims brought on behalf of a minor child under the 1962 Law could never be compromised, forcing those bringing the action to a trial with all the risks that go with that. The alternative would be to wait until the minor child comes of age, thus depriving him or her of the very financial assistance he or she requires as a child. To be a Court in any meaningful sense, it is necessary for it to ensure that any settlement is valid, final and binding. We therefore find that this Court does have the inherent power to sanction the settlement on behalf of B.
27. That being the case, Advocate Benest submitted that in the exercise of the Court's inherent power it should have regard to the provisions Rule 21.10(1) of the Civil Procedure Rules 1998, which provides that where a claim is made by or on behalf of a child no settlement, compromise or payment shall be valid in so far as it relates to the claim by or on behalf of or against the child without the approval of the Court. The commentary states that Rule 21.10 (and Rule 21.11 and the Practice Direction to which we will refer in a moment) provides a comprehensive code the objects of which are:-
"(a) To protect the interest of children and protected parties. This may involve protecting the child from any lack of skill or experience of their legal advisers which might lead to a settlement of money claim for far less than it is worth; see Black v Yates  QB 526; 4 All ER 722 (claim by child dependants for compensation greater than amount awarded by a foreign court).
(b) To provide means by which a defendant may obtain a valid discharge from a child or protected party's claim. At common law a contract of compromise out of court does not bind such a claimant unless it can be proved to have been for their benefit. No prudent defendant would wish to take a risk on this point. A judgment in proceedings or an order approving a settlement of proceedings under r.10 does bind the claimant child or protected party and gives the defendant a discharge.
(c) To make sure that money recovered by or on behalf of a child or protected party is properly looked after and wisely applied. Rule 21.11 provides for the control of money recovered.
(d) To ensure that the interests of all dependants entitled to a possible share in the settlement are properly defined and protected; ...."
28. As the Supreme Court said recently in Dunhill v Burgin  All ER 364 at page 373 the purpose of Rule 21.10(1) is to impose an external check on the propriety of the settlement; the policy underlying the Rule being that children require and deserve protection not only from themselves but also from their legal advisors (page 377).
29. The commentary goes on to state that the court should seek to further protect the child by ordering a detailed assessment of the costs which his or her solicitor may seek to charge the child save where those costs are waived. In Senior Master Turner's Handbook for Judges and Court Staff - Awards to Children and Patients and Investment and Control of such Funds it makes the comment that the English courts have always been anxious to protect the child on the issue of costs by guarding against (i) the case where the claimant's solicitor may seek to overcharge; (ii) the case where the claimant's solicitor may be tempted to recommend an unfavourable settlement by agreeing costs with his opponent and (iii) the solicitor, who having been disappointed with the amounts of costs recovered on assessment from the defendant, seeks to recover the balance from the damages awarded to his client.
30. We endorse these objectives but with one reservation in relation to the application of the monies recovered to which we will come shortly.
31. Practice Direction 21 provides further assistance in relation to the information that needs to be provided to the Court where it is asked to approve a settlement before the issuing of proceedings and after the issuing of proceedings. In the latter case (the position here), the Court should be supplied with an opinion on the merits of the settlement or compromise given by counsel or the solicitor acting for the child (except in very clear cases) and a copy of any financial advice.
32. The Court sat in private (in the absence of Advocate Benest) to consider the advice obtained on behalf of the plaintiff and the issue of whether the settlement was reasonable. In doing so, we considered the following factors:-
(i) The degree of benefits the settlement afforded B.
(ii) The merits of the case.
(iii) The level of litigation risk borne by each party.
(iv) The wishes of the parties to settle.
33. The Court had before it:-
(i) A draft consent order.
(ii) The Act of Court constituting the Tutelle for B (which took place after the settlement was entered into).
(iii) The advice of Mr Mark Stephen Lomas of English counsel who specialises in this field.
(iv) The Order of Justice.
(v) The answer.
(vi) The schedule of loss.
(vii) The counter schedule of loss.
(viii) The expert reports.
34. The advice of counsel was clear and comprehensive. This was a case in which liability was denied and in which there were complex medical issues and differing views expressed by the medico-legal experts. Counsel had carefully valued the claims and assessed the litigation risks. We agreed with his conclusions that the settlement was reasonable and appropriate. Whilst that part of the proceedings was in private, we authorise the disclosure of all of the documents before the Court to the Tutelle and in due course to B so that he can understand the basis upon which the settlement was reached.
35. One of the objectives of the Court is to protect the child from any lack of skill or experience of his legal adviser, and as Advocate Nicholls pointed out, he can hardly address the Court on the issue of his own skill in the conduct of the claim; hence the importance of his procuring the advice of English counsel in an area of law which is very close to Jersey law. Whilst English counsel may have previously advised on the claim and therefore was involved to that extent in its conduct, we think he would be sufficiently distant from the "coal-face" to provide an independent view for the Court. In the absence of English counsel's advice, it would be preferable, we feel, for another independent advocate or Jersey solicitor to provide the Court with an opinion on the reasonableness of the settlement.
36. There was no need for the Court to pursue the issue of costs with Advocate Nicholls as he confirmed that his firm would be making no deduction from the monies payable under the settlement; his firm's fees having been met from another source.
37. One of the objectives set out in the commentary to Rule 21 above is to make sure that the money recovered by or on behalf of a child is properly looked after and wisely applied. This is premised upon Rule 21.11(1) that provides that where in any proceedings monies are recovered by or on behalf of or for the benefit of a child it will be dealt with in accordance with directions given by the Court. The English judge will assess the future needs of the child and give a direction in this respect to the Court Funds Office who will then invest the funds. This Court has no equivalent rule, procedure or facility and cannot undertake an ongoing role in looking after and wisely applying the funds. However, we do feel that the Court's role should extend to being satisfied that proper arrangements have been put in place to look after the funds on behalf of the child. In this jurisdiction, a Tutelle is the appropriate body to look after the funds and in this case, a Tutelle has been formed following the settlement, with the plaintiff as the Tutrice.
38. In discussion with Advocate Nicholls, it transpired that the plaintiff is actually living permanently in Ireland with B and another child who she has had with her husband, whom she married following the death of the deceased. Her husband, however, would appear to be living in Jersey, although we were told that they were not estranged.
39. We were told that the intention is for the funds to be used to buy a house in Ireland for the occupation of the plaintiff and her now two children, which would be an asset of the Tutelle, although it is not clear how in law this would be achieved. Thus potentially, both the Tutrice and the assets would be outwith the jurisdiction and therefore beyond the supervision of the Court. It would be very difficult we feel for the electors, all of whom reside in Jersey, and the Court to hold the Tutrice to account in these circumstances. Ordinarily, we would expect the Tuteur/Tutrice to be resident within the Island and therefore amenable to the jurisdiction of the Court. If B is to live permanently with his mother in Ireland in a house to be purchased with his funds then consideration needs to be given as to whether these assets should be under the control or supervision of the Irish courts. Our understanding is that the High Court in Dublin will accept and manage funds for children resident in the Republic (see page 22 of Senior Master Turner's Handbook).
40. We were told that the electors were drawn from friends of the plaintiff and include the plaintiff's husband and his mother. We do not wish to impugn the integrity of either of them as there may good reason for this, but we did wonder whether B's stepfather and step-grandmother should be involved in his Tutelle.
41. A further issue for discussion is the conflict that inevitably will arise between the plaintiff's duties as Tutrice and her personal interests and how that will be addressed within the Tutelle. We note that in England a pragmatic approach is taken towards the apportionment of any award as between the widow and the child with the bulk of any award going to the widow, who will have the task of providing for the child, with a small proportion only being reserved for the child (MacGregor on Damages 28th Edition paragraph 36-079). In this case, the plaintiff has the task of providing for B, as his mother, but regrettably she is unable to receive any of the award in her own right. Senior Master Turner's Handbook makes reference on page 6 to the need to resist requests/demands of the surviving parent to "raid" their child's award. Again, we do not wish to impugn the integrity of the plaintiff, as we have no reason to believe that she would not look after these funds properly as Tutrice, but in protecting B, it is right that we raise the issue.
42. Advocate Nicholls was not in a position to assist us in relation to these observations and it was therefore ordered that the settlement funds be paid to his firm to be held to the order of the Court pending further order. A separate application will then be made as to the application of the funds.
43. In the ordinary course, we would expect the Court being asked to sanction a settlement on behalf of a child living in the Island to be provided with the following information at least in relation to the application of the funds:-
(i) The names, addresses, age and experience of the Tuteur/Tutrice and each of the electors and their relationship to the child.
(ii) Confirmation that the Tuteur and each of the electors have been advised in writing of their duties.
(iii) Where the Tuteur/Tutrice is in a position of potential conflict, how that conflict is to be addressed within the Tutelle.
(iv) The proposals of the Tutelle for the investment of the funds.
44. Where the child is living outside the Island then we can see no objection to the use of a Tutelle if the tuteur/tutrice are resident here (and thus the funds controlled from here), but if the funds are to be controlled from abroad, the Court will need to be advised as to how they will be held and the interests of the child safeguarded.
45. Currently, the Tuteur/Tutrice and the electors must pass annual accounts of the Tutelle, which must be dated and signed by them with a copy provided to each elector. There is no requirement for the filing of the accounts with the Court. This compares adversely we feel with the protection given to persons under a curatorship. We were minded to consider the possibility of ordering the Tutrice to file the accounts of the Tutelle with the Judicial Greffier annually.
Customary Law Amendment (Jersey) Law 1948.
Fatal Accidents (Jersey) Law 1962.
Pothier, Traité des Obligations 1761.
Civil Commissioners' Report 1861.
Supply of Goods and Services (Jersey) Law 2009.
Fatal Accidents Acts 1846-1908.
UK Fatal Accidents Act 1976.
Fatal Accidents Law 1962.
Jeffrey v Kent County Council  1 WLR 927.
Rules of the Supreme Court.
Civil Procedure Rules1998.
Black v Yates  2 QB 526.
Dunhill v Burgin  All ER 364.
Senior Master Turner's Handbook for Judges and Court Staff - Awards to Children and Patients and Investment and Control of such Funds.
MacGregor on Damages 28th Edition.