The importance of court approval in fatal accident claims involving children

Lessons from Bayless v Norfolk and Norwich University Hospital NHS Foundation Trust

In the recent High Court case, Bayless v Norfolk and Norwich University Hospital NHS Foundation Trust ([2023] EWHC 2986 (KB) (23 November 2023)), the issue of court approval in fatal accident claims involving children came to the forefront. This case serves as a valuable lesson for both claimants and defendants, highlighting the importance of obtaining court approval for settlements and the potential consequences of failing to do so. 

In this article, we will delve into the key facts and legal principles of the case, drawing insights from the judgment of Mr Justice Pepperall.

The case revolves around the tragic death of Mr Stephen Bayless, who passed away due to a misdiagnosis by the Norfolk and Norwich University Hospital. Following his death, his widow, the Claimant, filed a claim on behalf of herself and their two children for dependency under the Fatal Accidents Act 1976 and under the Law Reform (Miscellaneous Provisions) Act 1934. A settlement was agreed in 2019.  Both compensation and costs were paid.  

The firm acting at the time went into liquidation and the Claimant instructed Tees to bring a secondary victim claim on her behalf, and on behalf of the two children.  

In 2022, the Claimant and her children filed a new claim for damages as secondary victims for psychiatric injury caused by witnessing Mr. Bayless's death. The defendant Trust sought to strike out the Claimant’s claim, alleging that it had already been settled in the prior claim or constituted an abuse of process.

The Need for Court Approval in Fatal Accident Claims

Under rule 21.10 of the Civil Procedure Rules 1998, any settlement involving minors must be approved by the court to be considered binding. In the present case, shortly before the Defendant’s application to strike out the Claimant’s claim, it was discovered that the 2019 settlement had not received court approval, rendering it invalid. This meant that the acceptance of the Part 36 offer in the previous settlement did not effectively settle the claims. The lack of court approval was a critical oversight that placed both the claimants and the defendant at risk.

The Rule in Henderson v Henderson

The rule in Henderson v Henderson (1843) establishes that a party is obligated to bring forward all its claims in one action, preventing the abuse of process and multiple proceedings. In the present claim, the defendant Trust sought to strike out the Claimant’s claim based on this rule, arguing that a personal injury claim had already been settled in 2019, and that any further claim constituted an abuse of process. However, the court rejected this argument, emphasizing that the lack of court approval for the previous settlement rendered it ineffective.

The Failure of the Strike-Out Application

Mr Justice Pepperall also found that the Trust's application to strike out the Claimant’s personal injury claim was bound to fail from the outset. The court concluded that the 2019 settlement did not compromise the Claimant’s personal injury claim, as no such claim was asserted in the initial letter of claim or schedule of loss. Additionally, the court found that the application to strike out the claim based on the rule in Henderson v Henderson was misconceived. The Claimant had acted in good faith, was unaware of her psychiatric injury at the time of accepting the Part 36 offer, and any personal injury claim was not oppressive in the context of concurrent claims on behalf of her children.

The Consequences of the Lack of Court Approval

The lack of court approval for the settlement may have significant implications for both parties. The Trust faced the risk that the claimants may resile from their earlier acceptance of the Part 36 offer. Moreover, even if the parties agreed to abide by the terms of the settlement, the settlement could only be made binding upon obtaining court approval. This approval would be based on the current value of the child's dependency claim, which may differ from the sum agreed upon in 2019.

Equal Responsibility in the Settlement Process

While the Trust criticised the Claimant’s then legal representatives for their failure to obtain court approval, the court found that the Trust's own solicitors were equally at fault. The Trust paid out a substantial sum in settlement without obtaining a proper discharge, disregarding the basic requirement of obtaining court approval when settling claims involving children. The Trust's lawyers assumed that approval had been obtained, placing sole responsibility on the Claimant to obtain such approval, but this assumption was unfounded. The court emphasised that both parties were responsible for ensuring procedural compliance.

The Order for Costs

Upon realising the lack of court approval for the 2019 settlement, the Trust withdrew its application to strike out the Claimant’s personal injury claim. Under rule 44.2(2)(a) of the Civil Procedure Rules 1998, the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party. In this instance, as the application to strikeout was unsuccessful, the default position is that the Trust pay the Claimant’s wasted costs of the application. The Trust refused to agree to pay the Claimant’s costs. The court was therefore required to determine the appropriate order for costs associated with the withdrawn application. The Trust argued that no order as to costs should be made, blaming the Claimant’s then solicitors for the lack of approval, and arguing that the only reason the application was withdrawn was due to the lack of approval. However, the court disagreed and ruled that the Trust must bear the costs, as they should have recognized the futility of the application upon proper investigation. The Trust's ill-conceived endeavour had incurred unnecessary costs for the Claimant.

Mr Justice Pepperall found:

“The Trust withdrew an application that it ought to have realised, on proper investigation, was always liable to be dismissed. In doing so it has put [the Claimant] at unnecessary cost and it should now pay her costs on a standard basis.”

Lessons Learned

The case of Bayless v Norfolk and Norwich University Hospital NHS Foundation Trust highlights the importance of court approval in fatal accident claims involving children. Both claimants and defendants must ensure that settlements obtain proper court approval to be binding. The case also emphasises the need for thoroughness and due diligence in processing claims, especially those concerning vulnerable parties. Legal professionals should exercise caution and strictly adhere to procedural rules to avoid unnecessary costs and potential risks to both themselves and their clients.

This case serves as a legal insight into the importance of court approval in fatal accident claims involving children. The failure to obtain court approval for a settlement can render the settlement invalid, which may have significant consequences for both parties. The judgment emphasises the responsibility of all parties involved in the settlement process to ensure compliance with procedural requirements. By learning from the lessons of this case, legal professionals can better navigate the complexities of fatal accident claims, protecting the interests of vulnerable claimants and avoiding unnecessary costs.