Mealing v Chelsea & Westminster NHS Trust

An interim payment is discretionary and must promote the overriding objective. The claimant need not identify a particular expense that the payment will meet. The court should consider whether payment may prejudice the fair conduct of the trial, including by pre-empting issues or reducing the scope for periodical payments. A cautious valuation may be appropriate where the claim raises substantial unresolved issues. The payment must be no more than a reasonable proportion of the likely judgment, but the claimant’s immediate needs remain relevant. Delay may be considered, particularly where repeated payments could reduce the incentive to progress the claim, although it is not necessarily determinative.

The claimant, a child who suffered severe brain damage following admitted clinical negligence, applied for a further interim payment of £1 million. More than £773,000 had already been paid. The claim was valued at approximately £17 million, but the defendant disputed the valuation and raised substantial issues concerning the claimant’s proposed residence in France, imported care and therapy, accommodation, gratuitous care, and the possible use of periodical payments.

The application was made before the defendant had served its counter-schedule and expert evidence. The central questions were whether the requested payment represented a reasonable proportion of the likely judgment, whether it might prejudice the conduct of the trial, and whether the progress of the litigation justified refusing or limiting the payment.

1. Application granted in part. The court ordered a further interim payment of £250,000, payable within 14 days, and reserved the costs to the trial judge.
2. The decision whether to order an interim payment, and its amount, is discretionary. The discretion must be exercised consistently with the overriding objective and the requirement that the payment be no more than a reasonable proportion of the likely final judgment. The claimant need not show that particular sums are required for particular needs. The court is generally not concerned with how the money will be used, especially where a professional deputy or the Court of Protection is involved. These principles were drawn from Stringer v McArdle [1994] 1 WLR 1653 and Campbell v Mylchreest [1998] PIQR P20.
3. Possible prejudice to a fair trial is a material consideration. The court should consider whether expenditure might pre-empt an issue, or reduce the trial judge’s freedom to structure the award through periodical payments. Here, payment would not materially pre-empt the decision about residence or care because the family was already settled in France and the care arrangements were established. It was nevertheless important to preserve sufficient capital for accommodation and other capital expenditure.
4. Because the valuation depended on unresolved and substantial issues, a cautious broad-brush approach was justified. The court assessed the likely award by reference to the higher end of the bracket for comparable injuries, while allowing for the claimant’s long life expectancy and substantial care needs. Total interim payments of approximately £1.77 million would represent about 20–30 per cent of a likely £6–9 million award.
5. The claimant’s immediate care and other reasonable needs supported an award. There had been no culpable delay, although the case had not progressed with sufficient urgency. The possibility that further payments might encourage delay was relevant but not determinative.
6. The court declined to express a view on the merits of the unresolved claims concerning residence in France, imported care and therapy, accommodation, and the proposed uplift for gratuitous care. The possible relevance of M v Leeds Health Authority [2002] PIQR Q4 and Iqbal v Whipps Cross University Hospital NHS Trust [2007] Medical Reports 1997 to the accommodation issue was left for trial.