CPR 21.10 Approval Checklist: Infant and Protected Party Settlements

How to use the CPR 21.10 approval checklist

1. Say who the settlement is for. A child or a protected party, their claim or a claim against them, and whether proceedings have been issued.
2. Describe the claim. A personal injury claim from an accident, future loss, periodical payments, a dependent child’s share, or a low value protocol claim: each adds a requirement.
3. Describe the money. Only the bands the rules use, and whether the child or protected party can manage it.
4. Say how the claim was funded. And whether any costs or expenses will be claimed out of the damages.
5. Read the checklist. The route, each document and step with its rule and status, the court fee and what happens to the money.
6. Copy it for the file. Copy the checklist into the file note before preparing the approval bundle.

When the court must approve a settlement (CPR 21.10(1))

Where a claim is made by or on behalf of, or against, a child or protected party, “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.” (CPR 21.10(1)). A child is a person under 18; a protected party is a party, or an intended party, who lacks capacity within the meaning of the Mental Capacity Act 2005 to conduct the proceedings (CPR 21.1(2)). Accepting a Part 36 offer is caught: CPR 36.11 refers to rule 21.10. So is a voluntary interim payment. A child who turns 18 is no longer a child: unless they are also a protected party, a settlement they make as an adult does not need the court’s approval under CPR 21.10 (our reading), and the litigation friend’s appointment ceases (CPR 21.9(1)).

Before proceedings: a Part 8 claim for approval (CPR 21.10(2))

Where the agreement was reached before proceedings were begun and the sole purpose of proceedings is to obtain the court’s approval, “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 or payment (including any voluntary interim payment).” (CPR 21.10(2)). The claim form is Form N208. The child or protected party is named in the title as “[name] (a child) by [name] as litigation friend” (CPR 21.2(6)), and the litigation friend files a certificate of suitability (Form N235) when the claim is made, unless a Court of Protection deputy files the order instead (CPR 21.5). The free N235 builder fills in the certificate.

In proceedings already issued

Approval is sought in the claim itself, by an application under Part 23 (usually Form N244) or a request to the court at a hearing already listed, supported by the documents in CPR 21.10(3): on our reading of “any application or request for approval”. The free N244 builder fills in the application notice.

The documents for an infant approval hearing (CPR 21.10(3) to (7))

“The documents supporting any application or request for approval must include—”

1. a draft consent order setting out the proposed settlement terms;
2. details of whether or to what extent liability is admitted;
3. the age and occupation (if any) of the child or protected party;
4. confirmation that the litigation friend approves the settlement;
5. a copy of any relevant medical, financial or other expert evidence or advice;
6. in a personal injury claim arising from an accident, details of the accident and of claimed loss and damage;
7. any documents relevant to considerations of liability;
8. a legal opinion on the merits of the settlement, except in very clear cases, together with any relevant instructions unless they are sufficiently set out in the opinion;

“If the claim includes damages for future financial loss, the court must be satisfied that the parties have considered whether the damages should wholly or partly comprise periodical payments.” (CPR 21.10(4)). If the settlement includes periodical payments, the draft consent order must satisfy rules 41.8 and 41.9 as appropriate (CPR 21.10(5)). Where a dependent child’s settlement includes a sum apportioned to the child, the parties also give details of the deceased’s claimed loss of future earnings and of the nature and extent of the dependency (CPR 21.10(7)). Form N292 is the court’s form of order on a settlement for a child or protected party; the version on GOV.UK, published in 2009, still says “patient”.

At the approval hearing

A hearing is in private only to the extent the court is satisfied that it must be, for example to protect the interests of a child or protected party (CPR 39.2(3)(d)), and the court must order that a person’s identity is not disclosed if, and only if, it considers that necessary to secure the proper administration of justice and to protect that person’s interests (CPR 39.2(4)). The Court of Appeal gave guidance that approval hearings are essentially private business, albeit in open court, and that the court should normally make an anonymity order for the claimant without a formal application, after giving the press a chance to make submissions (JX MX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96 at [34]). Bring Form CFO 320 for a child, with the birth certificate or a certified copy, or Form CFO 320PB for a protected beneficiary who does not need a deputy: the judge completes it, and the court uses it to tell the Court Funds Office how to set up the account (CPR 21.11(6)). For a child likely to lack capacity at 18, whose fund is administered as a protected beneficiary’s fund (CPR 21.11(4)), the form is CFO 320PB on our reading. Where the court directs an application to the Court of Protection for a deputy (£100,000 or more: CPR 21.11(9)), ask the court office which form it wants.

What happens to the money (CPR 21.11)

• “the money will be dealt with in accordance with directions given by the court under this rule and not otherwise.” (CPR 21.11(1)). The directions may provide for payment into court and investment (CPR 21.11(2)).
• Unless the judge directs otherwise, the money goes into the court special account while the investment application is decided (CPR 21.11(7)).
• For a child who is not a protected beneficiary, the court may order the money paid to the litigation friend for an account for the child’s use; money that stays invested in court is paid out to the child at 18 (CPR 21.11(8)). A child likely to lack capacity to manage the money at 18 has the fund administered as a protected beneficiary’s fund (CPR 21.11(4)).
• For a protected party, the court first considers whether they are a protected beneficiary (CPR 21.11(3)). Where a protected beneficiary recovers £100,000 or more, the court shall direct an application to the Court of Protection for a deputy, unless an attorney under a registered power or a deputy already manages their finances (CPR 21.11(9)).
• Where the child or protected beneficiary is legally aided, the fund is subject to the statutory charge, and the investment order says so (CPR 21.11(5)).
• Later requests for payment out, or to vary the investment, can be made in writing to a Master or District Judge without a formal application (CPR 21.11(10)).

Infant approval hearing costs: deductions from the damages (CPR 21.12)

The general rule is that the court must order a detailed assessment of the costs payable by, or out of money belonging to, a child or protected party, and assess the costs payable to them (CPR 46.4(2)), unless one of the cases in PD 46 para 2.1 applies. Where the only costs are a CFA success fee or a DBA balance, the court may direct summary assessment (CPR 46.4(5)). In a low value RTA or employers’ or public liability protocol claim, the court assesses the costs as Section IV of Part 45 sets out (CPR 21.10(6)). For a personal injury claim whose cause of action accrued before 1 October 2023 (or a disease claim with a letter of claim sent before then), the same protocol fixed costs are in Sections II and III of Part 45 as it stood before that date (SI 2023/572 r.2).

On application, “a litigation friend who incurs costs or expenses on behalf of a child or protected party in any proceedings is entitled on application to recover the amount paid or payable out of any money recovered or paid into court to the extent that it – (a) has been reasonably incurred; and (b) is reasonable in amount.” (CPR 21.12(1)). Expenses can include an after-the-event insurance premium (CPR 21.12(3)). Costs recovered from the damages at first instance must not exceed 25% of the damages for pain, suffering and loss of amenity and past financial loss (CPR 21.12(8)); where the sum is £5,000 or less, the total is limited to 25% unless the court directs otherwise, and to 50% in any case, subject to that 25% limit on costs (CPR 21.12(7)). No application for payment out may be made until the costs payable to the child have been assessed or agreed, except in the fixed costs cases the rule names (CPR 21.12(9)). The litigation friend’s witness statement sets out, so far as applicable:

1. the nature and amount of the costs or expenses and the reason they were incurred;
2. a copy of any conditional fee or damages based agreement;
3. a copy of any risk assessment by reference to which any success fee was determined;
4. the reasons why the particular funding model was selected;
5. the advice given to the litigation friend on funding arrangements;
6. a copy bill or informal breakdown of the solicitor and own client base costs incurred;
7. details of any costs agreed, recovered or fixed costs recoverable by the child;
8. an explanation of the amount agreed or awarded for (i) general damages for pain, suffering and loss of amenity; and (ii) damages for past financial loss, net of any sums recoverable by the Compensation Recovery Unit or the Department for Work and Pensions;

The checklist sets out these rules and never works out the costs or a deduction: that is for the court, and preparing the costs is a costs draftsman’s work. The detailed assessment deadline calculator gives the dates once costs go to detailed assessment, and the CPR costs rules guide explains rules 46.4 and 21.12 alongside the other costs rules.

Court fee for an infant approval hearing

Schedule 1 to the Civil Proceedings Fees Order 2008 names no fee for approval, so these are our reading: a claim that only seeks approval is a claim for a remedy other than money (fee 1.5), and an application in existing proceedings is a general application (fees 2.4(a) and 2.5(a)). On our reading no hearing fee is payable for the approval hearing: fee 2.1 is charged when the court fixes a trial date or trial period for an allocated case, and Schedule 1 says it is not payable where the court fixed the trial date on the issue of the claim, as it often does for a Part 8 approval claim. A Part 8 claim is treated as allocated to the multi-track (CPR 8.9(c)), so if the court office asks for fee 2.1(a), check with it. Fees from 13 July 2026; the civil court fees calculator lists the rest. Check with the court office.

Practice Direction 21 was revoked

Practice Direction 21 was revoked from 6 April 2023, when the Civil Procedure (Amendment) Rules 2023 (SI 2023/105) moved its content into Part 21: what it required is now in the rules themselves, chiefly rules 21.5(4) to (6), 21.10(3) to (7), 21.11(4) to (10) and 21.12(10). Cite the rules, not PD 21. The Civil Procedure (Amendment) Rules 2023 (SI 2023/105) replaced rule 21.10(3) with new paragraphs (3) to (7), added rules 21.11(4) to (10) and 21.12(10), and renumbered the rest of rule 21.12; the CPR index on justice.gov.uk lists Practice Direction 21 as revoked (CPR rules and practice directions).

Related tools

• N235 certificate of suitability builder, for the litigation friend
• N244 application notice builder, for an application in existing proceedings
• Consent order and Tomlin order builder, for settlements that need no approval
• Civil court fees calculator
• All free tools

Sources

• CPR Part 21 (rules 21.1, 21.2, 21.5, 21.9 and 21.10 to 21.13), also on legislation.gov.uk; the Civil Procedure (Amendment) Rules 2023, r.14; the Civil Procedure (Amendment No. 2) Rules 2023, rr.2 and 7
• CPR Part 46 (rule 46.4) and Practice Direction 46 (para 2.1); CPR Part 45 (rule 45.1(6) and Section IV)
• CPR 6.13; CPR Part 8; CPR Part 23; CPR Part 36 (rule 36.11); CPR Part 39 (rule 39.2); CPR Part 41 (rules 41.8 and 41.9)
• JX MX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96
• GOV.UK: Form N208, Form N244, Form N235, Form N292, Form CFO 320, Form CFO 320PB and Form CFO 212
• Civil Proceedings Fees Order 2008, Sch 1