Making a Serious Injury claim for someone who can't claim for themselves

When making a claim of compensation for life-change injuries, some clients will not be able to instruct solicitor for themselves and will need help to be able to bring a claim.

One of our founding partners, Victoria Price, has previously written about the legal process to follow when acting for a child or a vulnerable party when they then sustain a personal injury.

This article explores what happens where somebody sustains life-changing injuries in an accident or collision, and the injuries themselves cause them to lose the ability to claim on their own behalf.

Identifying whether someone can bring a claim

When instructing a solicitor and starting legal proceedings, the person making a claim needs to have ‘capacity’ to be able to take these steps – otherwise the steps will not be valid.  For some people  (for example, those in a minimally conscious state), this position will be clear, but for most it is more complicated.

Having ’capacity‘ is more than just remembering what people are saying or being able to make good decisions. It involves being able to seek advice, weigh up the options and reach a logical and reasoned decision – even if it is one that others would not make.  They must be able to understand how their injuries affect them, and their needs, and what those needs are likely to be for the future.

If someone cannot do this, but could do it with help, then that help should be provided so they can then bring their own claim.

Bringing a claim

When an injured person is not able to bring a claim, then somebody needs to be appointed to stand in their shoes. This is known as a ‘litigation friend’. Typically, this will be a family member, but if there’s nobody suitable or willing to act on this basis then there is a government body that will provide somebody to perform this role at no cost.

The litigation friend will need to agree to act in the best interests of the injured party and can be removed by the Court if they do not do so. The claim remains the property of the injured party, with the litigation friend being a custodian of the claim.

Taking on the responsibilities of a litigation friend

As the case develops, it is for the litigation friend to receive legal advice and reach decisions. This ultimately includes whether to accept or reject any offer of settlement.

For a lot of family members, this can weigh heavily as they worry about unwittingly under settling the claim for their relative, leaving them unable to meet their needs.

There is a mechanism in place to protect the injured party to prevent their claim being under settled. If the litigation friend reaches agreement with the Defendant, the agreement is only provisional until a Judge gives their approval.

A Judge will not look at whether the settlement is ‘fair’ or ‘reasonable’; they will simply ensure that the injured party is not getting a bad deal.

Should the Judge consider the compensation insufficient, then they will refuse to approve the agreement and instruct the parties to continue the case.

Managing the money on behalf of a vulnerable party

Another common worry for family members is, ‘what will happen after the case has concluded?’

Unfortunately, providing access to significant sums of money for somebody who is vulnerable can often make them a target for the wrong kind of people.

As part of the claim for compensation, the court will usually allow a professional ‘deputy’ to be instructed to deal with the injured person’s financial affairs, ensuring they are spent solely in the interests of the injured party.

The deputy will typically pay bills and invoices, invest the money over someone’s life, help buy a house, make a Will and make sure that money is available to the injured person when they need it. Additionally, they will report back to the court at regular intervals about how the money is being spent with the aim of making sure that the money lasts for life.

The costs of this professional deputy will be paid by the Defendant as part of the claim.

Get in touch

If someone close to you has experienced a life-changing injury and you’re wondering what happens next, our specialist Serious Injury team are here to support you.

Contact our team today by calling 03333 058375 or email [email protected] to explore your options.