Cases involving children as a party bring an additional layer of costs complexity that does not arise in claims between adults. Wherever a settlement, compromise, or payment is proposed on behalf of a child, or a protected party, court approval is required before it can take effect, and the costs payable to, or recoverable from, that party are subject to their own distinct set of rules.  

For solicitors and costs practitioners, understanding how infant approval costs are assessed, and how they interact with fixed recoverable costs, is essential to protecting a client’s damages and ensuring costs are properly recovered. 

What Is an Infant Approval Hearing? 

Under CPR 21.10, no settlement, compromise, or payment on behalf of a child or protected party is valid without the approval of the court, whether or not proceedings have already been issued. Where proceedings have not yet begun, the litigation friend will generally bring the application by way of a Part 8 claim form. The resulting infant approval hearing, generally listed before a district judge in the County Court, exists to confirm that the proposed settlement is genuinely in the interests of the child or protected party, rather than simply to rubber-stamp an agreement already reached between the adult parties. 

It is worth noting that CPR 21 is not limited to personal injury claims, or to cases where the child is the claimant. The same approval requirement applies across other types of claim, and applies equally where a child or protected party is the defendant to proceedings. 

How Costs Are Assessed Where a Child Is Involved 

CPR 46.4 sets out the general rule for costs where money is payable to, or by, a child or protected party. The court must generally order a detailed assessment of any costs payable out of money belonging to a child or protected party, and must also assess any costs payable to that party, unless a default costs certificate has already been issued, or the claim falls within the fixed costs provisions of Part 45. This is a deliberately protective rule: it ensures that the costs deducted from a child’s damages have been properly scrutinised by the court, rather than simply agreed between the legal representative and an adult litigation friend. 

The court does have some flexibility to dispense with a full detailed assessment in certain circumstances, including those set out in Practice Direction 46, and where the only costs in question relate to a success fee under a conditional fee agreement, or a balance due under a damages-based agreement, the court may direct that these be assessed summarily instead. 

Deductions From a Child’s Damages 

CPR 21.12 further restricts what can actually be deducted from a child’s damages to cover costs. In broad terms, deductions are generally limited to costs that have been through detailed assessment under CPR 46.4, or a success fee or damages-based agreement balance, where the damages recovered do not exceed £25,000, subject to the specific conditions set out in the rule. This means a legal representative cannot simply agree a costs deduction directly with the litigation friend; the deduction needs to fit within one of these defined categories, properly evidenced, for the court to approve it. 

Infant Approval Costs and Fixed Recoverable Costs 

The interaction between infant approval costs and the extended fixed recoverable costs regime remains a genuinely unsettled area, and one worth flagging clearly to clients and litigation friends. On the fast track, there is generally no explicit allowance for the costs of an infant approval hearing, with the exception of claims following the RTA or Employer’s Liability/Public Liability Protocols, where an additional £150 is allowed specifically for advice on the settlement. Outside that specific allowance, there is a reasonable argument that fast-track fixed costs are intended to cover this work already, which can leave related disbursements exposed to challenge as an attempt at double recovery. 

The intermediate track takes a different approach, including a specific fixed bolt-on for “approval of settlement for a child,” ranging from £1,200 at the lowest complexity band to £2,000 at the highest. However, it remains unclear from the rules themselves whether this figure is intended to cover the approval hearing alone, or related disbursements as well, and practitioners should expect this to be an area of continuing dispute and clarification. 

Historically, the Court of Appeal has also held that counsel’s fees for advising on settlement in fixed costs infant approval cases are not separately recoverable, on the basis that this work is treated as already covered by the applicable fixed sum, a position the Supreme Court declined to disturb, while suggesting the Civil Procedure Rule Committee revisit the underlying rule. 

Practical Points for Solicitors 

• Confirm at the outset whether a claim will fall within fast track or intermediate track fixed costs, since the treatment of infant approval costs differs significantly between the two. 

• Keep a clear, itemised record of any costs or disbursements claimed in connection with the approval hearing, given how closely this area is scrutinised on detailed assessment. 

• Ensure any proposed deduction from a child’s damages fits within the categories permitted by CPR 21.12 before it is put to the court for approval. 

Speak to Greener Costs Today 

If you need support with infant approval costs, deductions from a child’s damages, or how fixed recoverable costs apply to a claim involving a child or protected party, contact Greener Costs’ costs lawyers and costs draftsmen on 01204 263047 or info@greenercosts.co.uk. 

FAQs 

Is court approval always required for a settlement involving a child? Yes. Under CPR 21.10, no settlement, compromise, or payment on behalf of a child or protected party is valid without the court’s approval, regardless of whether proceedings have been issued. 

Can costs always be deducted from a child’s damages? Not automatically. CPR 21.12 limits deductions to costs assessed through detailed assessment, or a success fee or damages-based agreement balance meeting specific conditions, meaning any deduction must fit within these defined categories. 

Are infant approval costs covered by fixed recoverable costs? It depends on the track. The fast track generally has no explicit allowance outside RTA or EL/PL Protocol claims, while the intermediate track includes a specific fixed amount for approval of a child’s settlement, though what exactly this covers remains a point of some uncertainty.