Setting up a bare trust to manage a child’s interim payments: an analysis of GWS (A Minor by their Litigation Friend FWH) and others v St Thomas Becket Catholic Primary School

Background

The Claimant was a seven-year-old boy who had suffered life threatening full thickness burns covering 45% of his body surface area. He had received interim payments totalling £430,000, of which £290,000 had been spent. The issue was what should happen to the remaining £140,000 which was left in the solicitors’ client account for the Claimant.

The application

The Claimant proposed that a trust should be set up to administer and manage the interim payments (the trust option). The Trust would be managed by two trustees: the litigation friend and a professional trustee who would work alongside the Claimant’s solicitors.

The decision

Master Brown refused the application for the following reasons:  

1. The other option for managing the funds was payment into the special account which was managed by the Court Funds Office (CFO). It was argued by the Claimant that there were significant processing delays by the CFO and that this would cause ‘serious problems’ with the administration of therapies etc. Master Brown did not find this a compelling argument, commenting that requests for payments often took a few weeks and the process could be expediated if necessary. Furthermore, it was possible to arrange for regular payments to be made.

• The Claimant argued that the trust option provided greater investment opportunities; Master Brown however noted that the current Special Account rate was 6% which was as favourable as other investment returns. In any event, it was likely that further professional advice regarding investment would be required if the trust option was approved, which would lead to further costs.

• Master Brown applied significant weight to the costs of the trust option. The costs of the CFO would be ‘substantially less’ than the costs of setting up and managing a trust. Master Brown was not satisfied that the costs of setting up and administering the trust were recoverable from the Defendant and therefore these costs would be paid out of the First Claimant’s damages. He commented that ‘even if the trust option had greater advantages to it than I consider it to have, I would be uneasy about an arrangement that committed the Claimant to the level of charges associated with the proposed trust without the reasonable level of certainty that it would be recovered from the Defendant’.

• The Claimant argued that one advantage of the trust option was that it might protect entitlement to benefits which would otherwise be lost. Master Brown noted however that the Claimant was not expected to receive benefits as a minor and therefore this was not a relevant issue now.

• Although it was possible that the First Claimant may want to hold his damages in trust on turning 18, this was not the only option available to him. Master Brown was not satisfied that there was an obvious saving to the Claimant if the trust was set up now. 

Master Brown therefore found that it was in the Claimant’s best interests for the monies to be paid into the special account in the CFO.

Discussion

As with any best interests decision, it is a balancing act of various factors. The compelling points were that the Claimant was likely to have capacity upon reaching the age of 18 and therefore would have the right to access and manage his own award (which would not necessarily require a trust) and the costs of the trust.

Master Brown has placed significant weight on the costs of the investment options. In the absence of any compelling basis for the setting up and maintaining of a trust, investment in the CFO where the costs were very modest was clearly in the Claimant’s best interests.

In this case, Master Brown commented on the lack of evidence regarding the actual (as opposed to the estimated) costs of setting up and managing the trust and the realistic difficulties in managing payments through the CFO. Those making applications to invest money elsewhere will require cogent evidence as to how the advantages outweigh the costs of managing the investment.