PROTECTED PARTIES – CPR 21.10 COMPATIBLE WITH ECHR ARTICLES 14 AND 6 – DEFENDANT ENTITLED TO WITHDRAW FROM COMPROMISE AGREEMENT

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By Bronia Hartley

Joseph James Penn Revill (a protected party proceedings by his litigation friend, Kirsty Marie Jarram) v Philip Damiani [2017] EWHC 2630 (QB)

The claimant, who lacked the capacity to litigate and was acting by his litigation friend, sought damages for injuries sustained in a road traffic accident. His claim included a claim for future losses.  The defendant admitted liability and, at a joint settlement meeting, agreed to make a lump sum payment to cover the claimant’s losses. The discount rate for future losses was agreed at the then rate of 2.5%, with the proviso that if the rate was reduced before the court approved the settlement, there would be a re-calculation in accordance with the new rate. Three days after the meeting, the discount rate was reduced, considerably increasing the sum payable by the defendant. Before the court approved the compromise agreement, the defendant withdrew from it.

The claimant challenged the defendant’s right to withdraw from the agreement and applied for an approval hearing.

There was no dispute that under CPR 21.10 a compromise agreement made with a protected party was not binding until it was approved by the court, and that, unless the Human Rights Act 1998 led to a different result, the defendant was entitled to withdraw from the compromise agreement.  The claimant sought to argue that CPR 21.10 was incompatible with his rights under ECHR art.14 (prohibition against discrimination) and ECHR art.6 (right to a fair trial).

The parties agreed that the claimant’s status as a protected party was an “other status” for the purposes of art.14, and that his claim fell within art.6. They also agreed that there was a difference in treatment between a claimant with protected party status and one without, in that the latter could compromise a claim for damages without having to obtain the court’s approval. It was common ground that the difference in treatment pursued the legitimate aim of protecting protected parties.

The issue for the court was whether the CPR 21.10 requirement for court approval was a proportionate means of achieving that aim.  The court determined that it was.

The requirement for court approval was a proportionate means of achieving the legitimate aim of protecting protected parties from the other parties, from themselves, and from any lack of skill on the part of their legal representatives. It was open to the rule-making body for the CPR to import the approach in family proceedings whereby the words “subject to the approval of the court” did not prevent a binding agreement being made, but merely suspended the carrying out of its terms until it had been approved.  That it chose not to was well within its discretionary area of judgment.

The court concluded that CPR 21.10 did not discriminate against protected parties and was not incompatible with ECHR art.14 read with art.6.  The defendant was entitled to withdraw from the compromise agreement.

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