Low-value personal injury cases involving children and their management are a crucial yet often misunderstood aspect of personal injury law and litigation.
While these proceedings may appear straightforward, they involve specific protections designed to safeguard the best interests of the child. Unfortunately, the nuances of these hearings can be easily overlooked by those unfamiliar or learn the process by following rote.
This article addresses points that may be unknown, misunderstood or helpfully affirm what practitioners may already know.
Defendant’s require the sealed Order to pay into the Court Funds Office
It was said by my opponent at a contested infant stage 3 hearing that asking the Court for the payment to be 14 days of service of the Order as ‘unnecesarily complicating things’ because a payement into the CFO would simply ‘marry up with the CFO 320 settings’. I asked for this because I had advised the Court that the Defendant cannot pay the money into the Court
My opponent had erred because the CFO 100 (the fom used to pay money into Court) contained the following statement:-
Has the court ordered you to pay money into court? If Yes, give the date of the order and attach a sealed copy of the order to this form. If you do not have a sealed copy of the order, then you must get the court to seal this form
Therefore, Orders which are not printed quickly (due to back logs) could lead to a unintentional breach of an Order because the Defendant simply cannot comply with the Order. Please bear in mind that Defendant is not being facitious, the request for payment into Court within x days of service of the Order is for a particualr reason.
Children’s whiplash cases cannot go into the Small Claims Track
Practitioners will know that a claim cannot go into the OIC portal if it concerns a child, because para 4.3(f) of the Pre-Action Protocol for Personal Injury Claims below the Small Claims Limit in Road Traffic Accidents (‘The RTA Small Claims Protocol’). It therefore goes into the MOJ portal under the usual Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (‘RTA Protocol’).
It is more than that. If Part 7 proceedings are issued, the claim is expressly excluded from the Small Claims Track as per CPR 26.11:-
26.11.
(1) The fast track is the normal track where a claim—
(a)is for personal injuries arising from a road traffic accident which occurs on or after 31st May 2021;
(b)is made by—
(i)a child or a protected party; or
(ii)a person who, on the date the claim was first presented via the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents, was a child; and
(c)consists of, or includes, a claim for a whiplash injury.
(2) Where this rule applies, the claim must not be allocated to the small claims track.
(3) ‘Whiplash injury’ has the meaning ascribed to it by paragraph 1.2(38) of the Pre-Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents.
It doesn’t matter if the damages being sought are £240 for a three-month whiplash injury with no psychological symptoms; it would be allocated to the Fast Track. Another key point is that if a child is under 18 and the claim was first submitted on the MOJ Portal whilst they were a child before turning 18, then it would not matter if the Claimant was an adult at the time of issuing proceedings, CPR 26.11(2) prevents Small Claims Track allocation.
The whiplash tariff does apply to children
I was previously instructed to prepare a skeleton argument for an approval hearing because the Court was not satisfied that the advocate, solicitors, and counsel (who drafted the advice on quantum) were correct in asserting that children were subject to the whiplash regime.
Section 1(4) explains the circumstances where a whiplash injury would apply:-
(4) For the purposes of this Part a person suffers a whiplash injury because of driver negligence if—
(a) when the person suffers the injury, the person—
(i) is using a motor vehicle other than a motor cycle on a road or other public place in England or Wales,
or
(ii) is being carried in or on a motor vehicle other than a motor cycle while another uses the vehicle on a road or other public place in England or Wales,
(b) the injury is caused—
(i) by the negligence of one or more other persons,
or
(ii) partly by the negligence of one or more other persons and partly by the negligence of the person who suffers the injury, and
(c) the negligence of the other person or persons consists in an act or acts done by the person or persons while using a motor vehicle on a road or other public place in England or Wales.
(5) The fact that the act or acts constituting the negligence of the other person or persons is or are also sufficient to establish another cause of action does not prevent subsection (4)(b) being satisfied.
(6) For the purposes of this section references to a person being carried in or on a vehicle include references to a person entering or getting on to, or alighting from, the vehicle.
(7) In this section—
- “act” includes omission;
- “motor cycle” has the meaning given by section 185(1) of the Road Traffic Act 1988;
- “motor vehicle” means a mechanically propelled vehicle intended or adapted for use on roads;
- “road” means a highway or other road to which the public has access, and includes bridges over which a road passes.
If a child is in a vehicle and sustains whiplash injuries, it will fall within the scope of the whiplash regime. The usual caveats, such as two years maximum duration, etc. apply but does not exclude children.
The fact that children are excluded from the small claims track and the OIC protocol does not mean that children are excluded from the whiplash regime. They are not mutually exclusive.
If the child sustains injury on a bicycle, pillion, motorcyclist (moped), or sustains injury as a pedestrian, then they are excluded from the regime because they are ‘vulnerable road users’.
Approval hearings can be conducted by District level Judges
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Practice Direction 21 states the following:-
5.6 Applications for the approval of a settlement or compromise will normally be heard by –
(1) a Master or a district judge in proceedings involving a child; and
(2) a Master, designated civil judge or his nominee in proceedings involving a protected party.
(For information about provisional damages claims see Part 41 and Practice Direction 41A.)
It is quite often the case that the Court staff in the County Court are not aware of the need for protective parties to be approved by the Designated Civil Judge or their nominee. It will often be the case a District Judge will hear it, but prior arrangements need to be made.
No additional steps are necessary for children, but if you do have a protected party, it is worth drawing attention to the Court staff about this to avoid any potential issues.
Contested infant Stage 3 hearings have investment hearings, not approval hearings
At several infant Stage 3 hearings, I find that advocates are asking for the Court to approve the sum that the Court had just determined. This is procedurally flawed.
CPR 21.10 says the following:-
Compromise etc. by or on behalf of a child or protected party
21.10(1) Where a claim is made –
(a) by or on behalf of a child or protected party; or
(b) 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.
The Court needs to approve compromises, settlements and payments regarding those settlements and compromises. A Court making a final determination is not a compromise, it is not a settlement and does not require approval.
The purpose of the approval is the safeguard regarding settlements between parties for which the child claimant has no role in. The Supreme Court discussed the issue recently in Dunhill v Burgin [2014] UKSC 18, where it was said:-
33. Policy arguments do not answer legal questions. But to the extent that they are at all relevant to the issues before us, the policy underlying the CPR is clear: that children and protected parties require and deserve protection, not only from themselves but also from their legal advisers. The notes to Order 80 in the last (1999) edition of the Supreme Court Practice stated that among the objects of the compromise rule was “to protect minors and patients from any lack of skill or experience of their legal advisers which might lead to a settlement of a money claim for far less than it is worth”, a sentiment which has been carried forward into the current edition of Civil Procedure.
A determination by the Court is not a decision by the legal advisors or the litigation friends. It seems that it won’t be approved. Sometimes I find Claimant bundles for contested stage 3 hearings contain an advice on quantum (very bad) or contained within the envelope with the Part B (less bad, but still not good – it is a privileged document and the court need only consider it when it is a compromise).
Whilst an agreement can be made at the door of the Court, and the advocate could either make oral submissions about why such an amount should be approved or then furnish the Judge with advice on quantum, one should not include a copy to the Court.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.