M (A Child) , Re

Neutral Citation Number: [2014] EWHC 57 (QB) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION Case No: HQ10X00738 Royal Courts of Justice Strand, London, WC2A 2LL Date: 23/01/2014 Before : THE HONOURABLE MR JUSTICE TUGENDHAT - - - - - - - - - - - - - - - - - - - - - Between : M (a child by his father and Litigation Friend) - and - LONDON BOROUGH OF LAMBETH - and - HYDE SOUTHBANK HOMES LTD - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Claimant Defendant/Part 20 Claimant Part 20 Defendant Augustus Ullstein QC (instructed by Anthony Gold) for the Claimant The other parties did not appear and were not represented Hearing dates: 19 June 2013 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Tugendhat : 1. 2. 3. 4. 5. I order (pursuant to CPR r39.2(4)) that the identity of the Claimant and Litigation Friend must not be disclosed. That is necessary to protect the interests of this Claimant who is a child (born on 29 February 2000), and it is in the interests of justice. The legal representatives of the Claimant apply to the Court for directions. The circumstances are as follows. The Defendants have not been served with notice of this application, but the Litigation Friend, who is the Claimant’s father, has been served. However, he has not attended, although I am satisfied that he is aware of this hearing. On 29 May 2004, when he was aged 4, the Claimant fell from the window of the flat where he was living with his mother and sister. He suffered serious orthopaedic injuries from which he has recovered. On 15 February 2011 the Court approved the settlement between the parties on the issue of liability, and judgment was entered for damages to be assessed on the basis of the apportionment agreed and approved. 6. 7. 8. 9. 10. 11. 12. 13. 14. The Claimant has the benefit of Legal Aid for the pursuit of this claim. By orders dated 13 December 2011 and 12 December 2012 the Master stayed these proceedings, first until 6 December 2012 and then until 19 December 2013. He also ordered an interim payment of £10,000. There is no dispute that the Claimant has demonstrated some evidence of impaired school progress and that he is hyperactive. There have been a number of expert reports prepared. Dr Gross and Dr Baldwin were instructed for the Claimant. Dr Gross is a Consultant Neurologist, and he has reported on 22 April 2008, September 2012 and by letter dated 25 October 2012. Dr Baldwin is a Consultant Educational Psychologist and Neuropsychologist. His reports were made in December 2008, January 2011 and September 2012. The Claimant also has the benefit of a report from an Occupational Therapist made in April 2010, but the assessment of the Claimant’s need in that report does not extend beyond 2013. Dr Baldwin concluded that “in all probability [the Claimant] suffered an acquired brain injury most probably affecting the left hemisphere and language function”. Dr Gross concluded that “it is very likely … that there is significant brain impairment and that the accident is responsible”. Dr Rosenbloom and Dr Reed were instructed for the Defendant. Dr Rosenbloom made a paediatric neurology report dated 7 March 2011. He accepted that there is some evidence that the Claimant’s injuries included a head injury, but he has concluded that the impairments that have been found are not diagnostic of acquired brain injury, but are consistent with his pre injury functioning, and are on the balance of probabilities secondary to his inherent pattern of development and may have been contributed to by relevant social and cultural factors. Dr Reed is a Clinical Child Psychologist and his report is dated 28 February 2010. He reached the same conclusion as Dr Rosenbloom. On 8 May 2013, Ms Spinks, the partner of the Claimant’s solicitors responsible for this matter, made a witness statement in support of this application. She states that the Claimant’s parents are not now willing to co-operate with the experts, and that they are not amenable to putting recommended support in place for him. The Litigation Friend has instructed her that he and his wife want this action settled as soon as possible, notwithstanding that it remains unclear whether or to what extent the Claimant has suffered a brain injury, or what disabilities he may be under in the future which may limit his ability to obtain gainful employment, or may necessitate care and support. She has exhibited Attendance Notes and letters which demonstrate to me the difficulties which she has encountered in seeking to achieve the best outcome in this litigation for the Claimant. In particular Ms Spinks asks whether she should apply for an order directing that the appointment of the Litigation Friend should be terminated and a new litigation friend appointed (CPR r21.7) and whether she should seek to settle the case in accordance with the instructions of the Litigation Friend. Any settlement would of course require the approval of the court. It is in that context that this application is made. It would not be appropriate for the legal advisers of a claimant to pursue a negotiated settlement unless there is a reasonable prospect that the court will approve it. 15. 16. 17. 18. It is probable that if a new litigation friend were to be appointed the Claimant’s parents would remain at least as unco-operative as they are now, and that that would not assist in advancing the best interest of the Claimant. In the course of submissions Mr Ullstein gave an indication to me of how the issue of liability had been resolved, and of how he expected any negotiations on quantum to be conducted both for the Claimant and for the Defendant. He explained to me the risks that he and Ms Spinks see, both generally in pursuing the action (such as may arise in any personal injury action), and in particular in pursuing the action in the light of the views expressed by the Claimant’s parents. Having considered the evidence (including a witness statement of Daniel Montroe dated 14 June 2013) and the thoughtful submissions of Mr Ullstein, I conclude that the best course to pursue in the circumstances is for the Claimant’s legal representatives to seek to negotiate as settlement on the basis of the existing medical and other evidence, as instructed by the Litigation Friend. At the hearing on 19 June 2013 I stated the conclusion I had reached and said that I would give my reasons in writing at a later date. Shortly afterwards I circulated this judgment in draft. On 19 December 2013 the matter came back before me on an application for the approval of the settlement that had by then been reached, and I gave my approval.