Unit 14 Part36, Infant Settlements and Parties Flashcards
When may a company be represented by an employee at trial?
A company or other corporation may be represented at trial by an employee if –
a. the employee has been authorised by the company or corporation to appear at trial on its behalf; and
b. the court gives permission.
What happens where someone who had an interest in a claim dies?
Where a person who had an interest in a claim has died and that person has no personal representative the court may order –
a. the claim to proceed in the absence of a person representing the estate of the deceased; or
b. a person to be appointed to represent the estate of the deceased.
Any judgment or order made or given in the claim is binding on the estate of the deceased.
What happens where a defendant against whom a claim could have been brought has died?
Where a defendant against whom a claim could have been brought has died and –
a. a grant of probate or administration has been made, the claim must be brought against the persons who are the personal representatives of the deceased;
b. a grant of probate or administration has not been made –
I. the claim must be brought against ‘the estate of’ the deceased; and
II. the claimant must apply to the court for an order appointing a person to represent the estate of the deceased in the claim.
A claim shall be treated as having been brought against ‘the estate of’ the deceased in accordance with paragraph (b)(i) where –
a. the claim is brought against the ‘personal representatives’ of the deceased but a grant of probate or administration has not been made; or
b. the person against whom the claim was brought was dead when the claim was started.
Any judgment or order made or given in the claim is binding on the estate of the deceased.
What does it mean to “lack capacity”?
Lacking capacity within the meaning of the Mental Capacity Act 2005.
What is a “protected party”?
‘protected party’ means a party, or an intended party, who lacks capacity to conduct the proceedings
What is a “protected beneficiary”?
‘protected beneficiary’ means a protected party who lacks capacity to manage and control any money recovered by him or on his behalf or for his benefit in the proceedings.
Who must be appointed a litigation friend?
- A protected party must have a litigation friend to conduct proceedings on his behalf.
- A child must have a litigation friend to conduct proceedings on his behalf unless the court makes an order under paragraph (3).
- The court may make an order permitting a child to conduct proceedings without a litigation friend.
- An application for an order under paragraph (3) –
a) may be made by the child;
b) if the child already has a litigation friend, must be made on notice to the litigation friend; and
c) if the child has no litigation friend, may be made without notice. - Where –
a) the court has made an order under paragraph (3); and
b) it subsequently appears to the court that it is desirable for a litigation friend to conduct the proceedings on behalf of the child,
the court may appoint a person to be the child’s litigation friend.
Can an opponent take steps against a protected party before they have a litigation friend?
Any step taken before a child or protected party has a litigation friend has no effect unless the court orders otherwise.
Who may be a litigation friend without a court order?
If nobody has been appointed by the court or, in the case of a protected party, has been appointed as a deputy as set out in paragraph (2), a person may act as a litigation friend if he –
a. can fairly and competently conduct proceedings on behalf of the child or protected party;
b. has no interest adverse to that of the child or protected party; and
c. where the child or protected party is a claimant, undertakes to pay any costs which the child or protected party may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the child or protected party.
Does any compromise or settlement of claim brought on behalf of a child or protected party need the courts approval?
Yes. 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.
An opinion on the merits of the settlement or compromise given by counsel or solicitor acting for the child or protected party must, except in very clear cases, be obtained.
A copy of the opinion and, unless the instructions on which it was given are sufficiently set out in it, a copy of the instructions, must be supplied to the court.
Does any compromise or settlement of claim brought against a child or protected party need the courts approval?
Yes. 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.
An opinion on the merits of the settlement or compromise given by counsel or solicitor acting for the child or protected party must, except in very clear cases, be obtained.
A copy of the opinion and, unless the instructions on which it was given are sufficiently set out in it, a copy of the instructions, must be supplied to the court.
If a child or protected party needs the courts permission to accept a settlement/ compromise prior to the beginning of proceedings, what is the procedure?
Where –
a. before proceedings in which a claim is made by or on behalf of, or against, a child or protected party (whether alone or with any other person) are begun, an agreement is reached for the settlement of the claim; and
b. the sole purpose of proceedings is to obtain the approval of the court to a settlement or compromise of the claim,
the claim must –
i. be made using the procedure set out in Part 8 (alternative procedure for claims); and
ii. include a request to the court for approval of the settlement or compromise.
If money is recovered by or on behalf of a child or protected party, what happens?
the money will be dealt with in accordance with directions given by the court under this rule and not otherwise.
Directions given under this rule may provide that the money shall be wholly or partly paid into court and invested or otherwise dealt with.
Where money is recovered by or on behalf of a protected party or money paid into court is accepted by or on behalf of a protected party, before giving directions in accordance with this rule, the court will first consider whether the protected party is a protected beneficiary.
Can a child or protected party accept settlement without the supervision of the court?
Yes, but it is not in anyone’s best interests to do so.
A child/protected party can accept a settlement without the supervision of the court; however, the settlement would not be valid – therefore, there would be no way of enforcing the payment if the defendant then refused to pay.
Can a protected party conduct legal proceedings without a litigation friend?
No.
