Settlement of personal injury claims on behalf of persons under disability has engendered confusion and uncertainty for personal injury lawyers. Counsel for the Plaintiff often negotiates what she is of the view is an excellent result on behalf of her client, however, when the settlement documentation required by Rule 7.08 of the Rules of Civil Procedure is submitted to the Court for approval, said approval is not always forthcoming.
IntroductionSettlement of personal injury claims on behalf of persons under disability has engendered confusion and uncertainty for personal injury lawyers. Counsel for the Plaintiff often negotiates what she is of the view is an excellent result on behalf of her client, however, when the settlement documentation required by Rule 7.08 of the Rules of Civil Procedure1 is submitted to the Court for approval, said approval is not always forthcoming.Court approval may be denied for several reasons which include:
- the Court is of the view that the quantum of the settlement is insufficient;
- the Court is concerned that there is insufficient evidence before it to approve the quantum of the settlement;
- the Court disagrees with counsel's analysis of liability, damages or litigation risk in determining the quantum of the settlement;
- the Court disapproves of the manner in which the settlement proceeds are to be paid to the person under disability (ie. inadequate structured settlement, risky management plan being advanced as opposed to a structured settlement, or the absence of a guardian of property or other authorized person to accept payments on behalf of the person under disability).
In most cases, the Court simply requests, by way of endorsement, additional information from counsel before approval can be forthcoming. Alternatively, the above issues can be resolved with the assistance of the Children’s Lawyer or Public Guardian and Trustee, if the Court requests a report under Rule 7.08(5) of the Rules of Civil Procedure.2
Most perplexing for Plaintiffs' counsel, however, is when the Court does not approve the settlement solely on account of the quantum of fees the solicitor is proposing to charge.
This paper will address the current state of the law on the issue of solicitors' fees in the context of settlements on behalf of persons under disability, and thereafter will set out practical strategies while drafting the requisite lawyer’s affidavit, to effectively and persuasively state the case for the solicitor's proposed fees.
Notes:
1 R.R.O. 1990, Reg. 194.
2 Ibid.
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Obtaining Court Approval of a Settlement Under Rule 7.08: What You Need to Know