PREPARING INFANT STAGE 3 HEARINGS AND INFANT SETTLEMENT APPROVALS UNDER THE RTA PROTOCOL CPR PART 8 PROCEDURE FOR REMOTE HEARINGS DURING THE COVID 19 PANDEMIC
- Dealing with children’s claims must remain a priority during the present emergency, notwithstanding that it may mean utilizing the remit of existing procedures in ways that are possibly unfamiliar, or even originally unimagined, in order to accommodate the demands of social distancing. Infant claimants should not be kept out of their money any longer than is absolutely necessary.
- Infant Stage 3 and infant settlement approvals are not traditionally carried out by way of Telephone hearings, being outside the scope of CPR Practice Direction 23A (Applications) paragraph 6.2. However, paragraph 6.5 allows a court, of its own initiative, to direct that an application of any type may be conducted as a Telephone hearing. Video conferencing is available for “any part of proceedings” see CPR Practice Direction 32, Annex 3 paragraph 2, subject to specific directions being given by the court, see, CPR Practice Direction 23A paragraph 7. Potentially this makes video conferencing a very much more flexible option.
- At time of writing there is no generally applicable guidance from the Ministry of Justice on how infant Stage 3 and infant settlement approvals should be prepared for remote hearings. This is, of course, quite understandable given the unprecedented nature of our current times.
- With this in mind, until definitive advice is received, what follows is an attempt to offer some suggestions intended to help those faced with the task of preparing such cases on behalf of child claimants.
- It is worth beginning with a reminder of the overriding objective, particularly the duty to deal with cases “justly” and “fairly”. This will be a case management decision of two elements. First, whether it is appropriate to proceed remotely at all and secondly, if so, by what method. Perhaps not surprisingly judicial authority provoked by the pandemic comprises in the main of decisions in sensitive and urgent child care matters, and such cases need to read with that caveat before they are relied on by analogy. Nevertheless, in A (children) (Remote Hearing: Care and Placement Orders)  EWCA Civ 583 the Court of Appeal, led by the President of the Family Division Sir Andrew McFarlane, set out a useful list of relevant factors at paragraph 9 of the judgment. On the specific facts before it, the court then went on to hold at paragraphs 49 to 56 that the case was unsuitable for remote hearing because one of the parties would struggle to engage with technology and therefore could not participate sufficiently to make the hearing “fair”.
- Significantly the process of resolving disputed evidence as to fact, which might be regarded as providing the most fertile ground for injustice when carried out through the lens of a remote hearing, will not arise in the vast majority of infant stage 3 and settlement approvals, a characteristic which should increase their suitability for remote handling.
- First and foremost check all the directions that the court dealing with the particular case that you are handling may have given. These should always be adhered to and must take precedence over any of the ideas advanced on this page. In the straight forward instance of a settlement approval to be followed by an investment hearing, if the current court order(s) do not cater for the consequences of social distancing, for example they simply direct that a “disposal” hearing will take place by Telephone, then it may be possible to engage with the court and obtain further case specific directions in advance of a forthcoming hearing. CPR Practice Direction 23A (Applications) paragraph 9.2, covering as it does “…any hearing that [the court] fixes on its own initiative…” may assist in this regard and, if cases can be identified and actioned sufficiently early, then such directions offer the opportunity to smooth out many of the likely difficulties.
- A paginated bundle is always very helpful. It must be thoroughly prepared since there is no prospect of the advocate being able to introduce a missing document during submissions in the way that one might do in a traditional court room environment. During a Telephone hearing it is clearly impossible to proffer a document. Even during a hearing conducted via Skype or similar, whilst a document could be held up to the screen, just how effective that might be and the variety of issues that may arise if it is then deemed requisite that the document be filed and served render the notion rather imponderable. Reference should, of course, always be made to the evidence required to be filed in the various circumstances set out in CPR Part 8 Practice Direction 8B (Low value RTA pre-action protocols Stage 3 procedure) and CPR Part 21 Practice Direction 21 (Children and Protected Parties), ensuring that this is included appropriately in the bundle. In this respect the most important paragraphs of the practice directions are:
- PD 8B paragraph 6 filing and serving written evidence;
- PD 21 Paragraph 5 approval of settlement made before the issue of proceedings;
- PD 21 Paragraph 6, approval of a settlement made after the issue of proceedings; and
- PD 21Paragraph 9 Investment on behalf of a child.
Wherever possible electronic pagination of the bundle is to be preferred. Photographs must be of good quality, especially when scarring is a constituent of the injury.
Filing and service
- In terms of filing and service of bundles or documents, in the first instance reference should be made to any stipulations in the relevant rule, practice direction or any order of the court made in the case you are handling. However, where none of these make provision, then the longstop is paragraph 6.11 of CPR Practice Direction 23A (Applications) by which the filing of documents is directed to be “…no later than 4:00pm at least 2 days before the hearing”. Being pragmatic about the constraints thrust upon the court service by the pandemic it might be prudent practice to allow a day or two longer.
- Guidance on the preparation of bundles applicable in the Business and Property Courts in Birmingham when using the Skype platform has gained wide currency on the Midland Circuit as the pandemic has progressed, and in the absence of case specific directions one might take inspiration from it.
The litigation friend
- The major practical difficulty to be addressed in the case of a remote hearing will be the physical absence of both the litigation friend and the child from the hearing. This will give rise to two concerns which are normally dealt with by the litigation friend in a traditional court. First, for the purpose of approving the settlement, it is necessary to have confirmation that the minor has recovered from his or her injuries in line with the expectations outlined in the medical report. Secondly, for the resolution of the investment hearing that will follow the approval, the age of the infant must be proved and, if investment in the Court Funds Office is considered undesirable due to the low rate of interest that it pays, then the litigation friend would customarily provide evidence of the existence of a child trust fund or contend for such other investment direction as is thought fitting.
- In order to alleviate these problems, in addition to filing a completed and signed Form 320, together with a draft order in Practice Form N292, you should also consider the following:
- Endeavour to make sure that the litigation friend has received a copy of Form CFO 403 (information sheet for litigation friend) which should accompany the Form 320;
- If the litigation friend and the minor are part of the same household, they might, potentially, be joined into the Telephone hearing. If that were to be possible then in that way the litigation friend and, provided that he or she is of suitable age, also the infant, could each answer questions in the usual way. However, a potential pitfall here is that as mentioned above, CPR Practice Direction 23A paragraphs 6.1 – 6.10 were not drafted with Stage 3 and infant approvals directly in mind and paragraph 6.10(4) does not envisage any participants in the Telephone hearing other than legal representatives and the judge. It may be possible to overcome this with only judicial consent – the Defendant has no role in the typical infant approval, the hearing is inherently non-contentious and including the litigation friend would more closely approximate to orthodox proceedings;
- If video conferencing is used there would seem to be nothing in the CPR or practice directions to prevent the litigation friend and child attending on-line if so directed;
- Alternatively a concise witness statement from the litigation friend might be filed confirming that the child has recovered from his or her injuries in accordance with the prognosis anticipated in the medical report. This witness statement can additionally confirm that the litigation friend is happy with the settlement as required by CPR Part 8 Practice Direction 8B paragraph 6.5;
- In any case a certified copy of the birth certificate (or, exceptionally, other proof of age) should always be filed, assuming that the same can be obtained without the Government’s social distancing guidelines needing to be breached. This is necessary because it will not be possible to hand up the original birth certificate to the District Judge, as one would usually do; or
- If a certified copy cannot be obtained, then it might be sufficient to exhibit an ordinary copy to a short witness statement as long as it is explained in the witness statement why it is that a certified copy cannot be obtained without breaching the social distancing requirements.
The writer is aware that conditional on the filing of appropriate paperwork some district judges are content to deal with the investment directions as box work.
- A contested stage 3 hearing is relatively rare in the case of an infant but if any such is to be heard remotely then filing and serving a paginated bundle is absolutely essential and a case summary setting out the issues is also a sensible idea.
Arranging and conducting the remote hearing
- General reference may be made to CPR Practice Direction 23A, paragraphs 6.1 – 6.10 of which deal with Telephone hearings and to CPR Practice Direction 32 Annex 3 paragraphs 8 and following which address video conferencing.
- Obviously, in addressing the consequences of the “social distancing” necessitated by Covid 19 everyone involved is dealing with a unique and continually evolving situation. This is the second edition of this web page. The first edition focused substantially on Telephone hearings and this revision incorporates some broadening of the treatment to encompass remote hearings generally. It is intended to provide further revisions notably as the forthcoming Cloud Video Platform is rolled out.
- Feedback from legal professionals and the judiciary in terms of both comment, as well as any experiences that you might like to share of having infant hearings affected by the lockdown, the steps you took, or the directions you received from the court will enable the discussion in subsequent editions of this page to become more comprehensive, informed and mature. Feedback will not be attributed on the published page.
- Feedback should be sent using the button below and must come from your professional practice or official government e-mail. It should go without saying that duties of confidentiality, both as a matter of professional conduct and as imposed by the GDPR require that any anecdotes from real case experience which you choose to present in feedback must be fully anonymized.
New Street Chambers