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How to make a personal injury claim on behalf of a protected party

View profile for Shahina Sakeria
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Who is classed as a protected party?

A protected party is someone who lacks capacity to conduct legal proceedings

The Mental Capacity Act 2005 states “a person is unable to make a decision for himself if s/he is unable:

a) to understand the information relevant to the decision,
b) to retain the information,
c) to use or weigh that information as part of the process of making the decision, or
d) to communicate their decision”

How do you know if someone is a protected party?

This will be confirmed within their medical records, or a capacity report will need to be obtained which will explain why the person concerned lacks capacity. If you have suspicion that the injured person lacks mental capacity, either prior to the incident or as a result of it, you should make your solicitors aware of this when instructing them.  

How do you bring a claim for a protected party?

A litigation friend is required to pursue a claim on behalf of a protected party, which can be a trusted family member or friend of the protected party. Their role is to help the protected party with their legal issues in a fair and competent manner, and to undertake to pay any necessary legal costs, although these cases are usually dealt with on a “no win no fee” basis.

What does it mean to be a litigation friend?

Their role is to make decisions on behalf of a protected party in a legal matter. They will be required to sign legal documents, provide instructions, communicate with the protected party if possible and make key decisions throughout the conduct of the case.

What is the limitation period for a protected party to bring a claim?

There is no statutory time limit to bring a claim for compensation, on the basis that the injured person lacks mental capacity and are unable to make decisions for themselves. However, capacity can come an go for some people which could mean that a three year limitation period starts to run during their period of having capacity. As such, we always recommend that the claim is pursued as soon as possible to ensure that deadlines aren’t missed, as well as to allow us the opportunity to collate evidence and carry out the necessary enquiries.

Is approval of any settlement required?

Once a case has successfully settled, approval of settlement is required from the court. A protected party is a vulnerable person, therefore the court wishes to approve the settlement to ensure that they are adequately compensated. The court will usually want to see an advice from a legal professional to confirm whether the settlement reached is reasonable in light of the risks and the injuries sustained.

It is important to note that no settlement is binding until it has been approved by the court.

Who keeps the compensation?

This will depend on the amount of compensation recovered.

If the award is less than £100,000 then the money may be placed into the Court Funds Office and the litigation friend can make requests for a certain amount of money to be released for the benefit of the protected party. Sometimes the court will agree to regular payments being made for the benefit of the protected party until the funds are exhausted.

If the award is more than £100,000, the order approving the settlement will contain a direction for the litigation friend to apply to the Court of Protection for the appointment of a deputy. The Court of Protection has the authority to make decisions in the best interest of a protected party. 

If you know of someone who is a protected party and they have been involved in an accident or incident through no fault of their own and/or due to the negligence of a service provider, then you may want to pursue a personal injury compensation claim on their behalf. Contact our specialist team for an informal chat on 0161 696 6235 or complete our simple enquiry form and we can call you back at a time to suit you.