Campbell v Mylchreest

Under Rules of the Supreme Court Order 29, rule 11, satisfaction of the threshold conditions gives the court a discretion, rather than an automatic duty, to order an interim payment up to a reasonable proportion of likely recoverable damages. The plaintiff ordinarily need show no special need, and intended use is ordinarily immaterial. However, intended use becomes relevant where it may prejudice a fair trial or pre-empt an important issue. That risk is a factor, never an absolute bar, and must be weighed with the fact that the payment is prima facie the plaintiff’s money. An appellate court may exercise the discretion afresh where a relevant factor was omitted.

The plaintiff suffered catastrophic head injuries in a road accident for which liability was agreed, subject to 25% contributory negligence. The High Court entered judgment for damages to be assessed and ordered the defendant to make a £100,000 interim payment from money held in court, to be paid to the Court of Protection for the plaintiff’s benefit.

The defendant appealed. Competing evidence concerned the plaintiff’s awareness and whether his future care should be provided at home or in a National Health Service unit. The defendant argued that funding a permanent home-care regime before the quantum trial could affect the assessment of damages and prejudice the fair conduct of the trial. The central issue was whether that possibility was a relevant factor in exercising the discretion to order an interim payment.

The appeal was dismissed unanimously. The stay was discharged, and the interim payment was permitted to proceed.

1. Scope of the discretion. Sir John Balcombe held, with Lord Justice Auld agreeing, that Order 29, rule 11 conferred a discretion. Even where the threshold conditions were satisfied and the sum did not exceed a reasonable proportion of the likely recoverable damages after contributory negligence, the court still had to decide whether payment was just.
2. Intended use and trial fairness. Stringman (a Minor) v McArdle [1994] 1 WLR 1653 established the ordinary starting point that no particular need need be shown and that the court normally need not investigate how the money would be used. It did not address a case in which the proposed use might affect the level playing field or pre-empt an important issue. Such possible prejudice was therefore a relevant factor, to be weighed with the Stringman starting point. It could never operate as an absolute bar.
3. Appellate approach. The High Court judge appeared to have treated the prejudice argument as an afterthought and had not clearly weighed it alongside the ordinary starting point. Applying the guidance in Eagil Trust Co. Ltd. v. Pigott-Brown [1985] 3 All ER 119, the Court of Appeal exercised the discretion afresh.
4. Application. The home regime was already operating; the parents had incurred expenditure; the plaintiff would remain partly based at the Frank James Unit; and the payment was substantially below the likely damages. Given the short interval before trial, there was no serious risk that the payment would materially prejudice the assessment. The £100,000 payment was justified.

Lord Justice Auld also identified, as possible factors in other cases, the proximity of the application to trial, whether the sum was too small to make the exercise worthwhile, and whether repeated applications were delaying trial. The order was for dismissal with costs, removal of the stay, payment into the Court of Protection, and refusal of leave to appeal to the House of Lords.

• Court of Appeal (Civil Division): On 23 January 1998, dismissed the appeal, discharged the stay, and directed that the £100,000 interim payment proceed from money held in court.
• High Court of Justice, Queen’s Bench Division: On 2 October 1997, Mr Justice Blofeld ordered the defendant to make a £100,000 interim payment to be paid to the Court of Protection, following judgment for damages to be assessed.