In yesterday’s blog, I discussed the representation of unborn and unascertained parties in litigation in which their interests are affected.  In such cases, the parties should obtain a representation order authorizing a chosen individual, or perhaps the Children’s Lawyer, to represent the interests of that unborn or unascertained person or class of persons.  Today’s blog considers the opposite end of the litigation spectrum – settlement.

Rule 10 of the Rules of Civil Procedure empowers the court to appoint a representative to act on behalf of unborn and unascertained beneficiaries. Situations may arise in which such an appointment is not necessary at the outset of litigation, for example, where the unborn beneficiaries need not be named as parties, but which may become necessary to conclude a matter.

In particular, where the parties to litigation agree on terms of settlement, that settlement is subject to the approval of the court if it impacts the interests of a party under disability, such as a mi

nor.  Similar principles apply to circumstances in which an unborn or unascertained beneficiary is not a party to a proceeding but is nonetheless “interested in the settlement” in accordance with Rule 10.01(3) of the Rules.

Rule 10.01(3) authorizes a party appointed by representation order to “assent to the settlement” entered into by the parties to the litigation.  If the judge hearing the motion for court approval is satisfied that the settlement is “for the benefit of the interested persons who are not parties”, and the representative does, in fact, assent to that settlement, the court is empowered to approve the settlement on their behalf.

As a point of practice, although motions for court approval on behalf of parties under a disability have strict requirements as to the nature and content of the materials to be filed, there is no such strict requirement for approval motions brought pursuant to Rule 10.  That said, parties bringing such motions would be well advised to comment on the benefits of settlement from the perspective of the unborn and unascertained beneficiaries in order to assist the court.

Thanks for reading.

Garrett Horrocks