Guidance on use of a personal injury trust for an infant claimant who is expected to have capacity as an adult

GWS and others v St Thomas Becket Catholic Primary School [22.12.2023]

In his Judgment, Master Brown provided helpful consideration of the appropriateness of setting up a bare trust in a claim where the infant claimant would have capacity upon turning 18 years old. The Application, brought on behalf of the claimant, was rejected.


Liability was admitted for life threatening injuries when the infant claimant attended his school carol concert and his costume accidentally set on fire. He suffered full thickness burns to 45% of his body surface area, leaving him with substantial scarring and requiring extensive treatment.

A risk was established of emerging psychological reaction as he reached adolescence, which had a potentially significant impact on the level of damages, and so quantum assessment was stayed. Interim damages payments were made to the claimant totalling £430,000 for the allowance of therapies, transport and educational fees, leaving approximately £140,000 (taking into account outstanding payments) for the claimant in the solicitors’ client account. The claimant requested permission from the court to set up a bare personal injury trust to administer and manage any further payment paid to the claimant. There was no suggestion that the claimant would lack capacity when he turned 18 years of age.

The solicitors firm instructed on behalf of the claimant had their own professional trustee division. It was intended that this corporation and the litigation friend be appointed a professional trustees. An estimate of the costs was provided to the court.

Weighing up the options

Master Brown considered there were essentially two options: 1. Creation of a bare trust, as requested by the claimant (the bare trust) and 2. Payment into Court Funds, in particular the Special Account (the CFO option). In response to the claimant’s arguments in favour of the bare trust, Master Brown considered the advantages and disadvantages of both in his Judgment. By way of a summary (with reference to paragraphs 30 to 64 of the Judgment):

Alleged delays with the CFO option

The claimant argued there were significant delays in accessing funds from the Court Funds Office and there was a risk that the claimant’s rehabilitation would suffer due to this delay. Master Brown rejected this argument. He did not agree there was any such delay and noted no evidence had been provided in support of this assertion. In any event, he noted that steps could be taken to minimise delays.

State benefits

One advantage to a bare trust for adults is that it might “protect entitlement to benefits which (would otherwise be lost)”. However, the claimant was a child and so he was not expected to receive benefits as a minor. Master Brown therefore rejected this as a justification for setting up the trust now.

Investment opportunities

It was argued that the trust option would offer almost “unlimited investment options”, compared to the limited CFO option. However, Master Brown noted the Special Account rate provided by the CFO option “currently pays 6% interest” and it was difficult to see how the claimant could do better than that. Even if this did reduce, the timeframe for money held would be relatively short due to the constant need to pay out to meet expenses, so this would not cause substantial prejudice.

Cost effectiveness

The claimant contended that although the management of the CFO option is free there are substantial solicitors’ costs associated with it, in managing administering and assessing interim payments. It was argued that much, if not all of this work, would be avoided if the trust were set up to deal with interim payments. Master Brown rejected this argument; he did not accept the assertions as to the high costs associated with the CFO options or that with the trust option he would be simply “able to pass over responsibility for dealing with interim payment to the trustees”. To the contrary, he expressed that "the costs of managing a  trust involving the sort of sums which appear to be in contemplation look high to me”, accepting he did not have anything to make a comparison with. In addition, he was concerned to note the lack of mechanism by which the costs could reasonably be controlled. He also noted that it would be for the claimant’s solicitor to challenge the bill coming from a division of his own firm and there were “obvious difficulties with this arrangement”.

Stress/inconvenience of CFO option

Master Brown felt it was “highly unlikely that attendance at court would be required for approving the release of funds on an interim basis”. Written communication from a junior fee earner, with supportive written evidence, was usually sufficient. The idea that the CFO option would cause considerable stress to the family was therefore rejected.

Trust at 18 years of age

It could not be wholly discounted that the claimant “would want to hold his damages in trust” when he reached 18. If the costs of setting up the trust “were offset  by the costs of any modifications which would be necessary to the trust when the Claimant turns 18” , then this is the only obvious cost saving Master Brown could find in setting up a bare trust. However, the Master queried why he would want that in light of the high costs associated with it, when he could enlist the help of a financial advisor instead.

Purchase/adaptation of property

An argument was advanced regarding property purchases and protecting the claimant’s interests. Whilst the Master accepted this may be beneficial, he rejected that it was relevant for the purposes of managing interim funds.

Recoverability of costs

The Master did not consider that any approval he granted of a bare trust would bind the trial Judge’s assessment of the recoverability of the costs associated with it and there were clear arguments against recoverability. He expressed concern that in due course the claimant “may end up having to pay for it out of his damages – damages which he had received for ongoing and future treatment or care”.


Master Brown concluded that "any benefits associated with the trust option (which “are difficult to discern”) are substantially outweighed by the costs”. He concluded that payment into the Special Account was in the best interests of the claimant. The Application to set up a bare trust was accordingly rejected.


This Judgment has provided helpful and welcome guidance on the use of such personal injury trusts for an infant claimant who is expected to have capacity as an adult. The merits of such Applications will need to be taken on a case by case basis but, it appears there will be limited circumstances where such a trust can be justified for a future capacitous claimant in light of the points highlighted in this Judgment.

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